BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140016997 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of a former service member (FSM), requests correction of the FSM's records to show she is the eligible beneficiary to receive a Reserve Component (RC) Survivor Benefit Plan (SBP) annuity as a former spouse.

2.  The applicant states that she was married to the FSM for 28 years.  Their divorce decree designated her as a former spouse beneficiary for the SBP.  The FSM assured her that she would be eligible for the benefit and she thought he had taken care of the matter.  She was not aware that she had to submit a written request for former spouse coverage within one (1) year of their divorce until she notified the Defense Finance and Accounting Service (DFAS) of the FSM's death.

3.  The applicant provides copies of their marriage certificate, child's birth certificate, divorce decree, the FSM's death certificate, her application for survivor annuity, and U.S. Army Human Resources Command letter.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in December 1956.

2.  The FSM had prior enlisted service in the Regular Army and U.S. Army Reserve (USAR) from 28 March 1974 through 5 November 1980.  He enlisted in Army National Guard (ARNG) on 6 November 1980.  He was promoted to specialist/pay grade E-4 on 21 April 1982.
3.  On 2 March 2001, the FSM was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).  It shows the FSM was provided an SBP Summary with the letter.

4.  Florida National Guard, Office of the Adjutant General, St. Augustine, FL, Orders P017-038, dated 17 January 2002, honorably discharged the FSM from the ARNG and assigned him to the USAR Control Group (Retired Reserve),
St. Louis, MO, effective 5 November 2001.

5.  A review of the FSM's military personnel records failed to reveal any evidence of an application for the RCSBP.

6.  In support of her application the applicant provides the following documents.

	a.  State of Georgia, County of Lowndes, Marriage License, that shows the FSM and applicant married on 25 August 1984.

	b.  State of Georgia, Certificate of Vital Record, that shows Adam J. W---- was born in September 1985.  The FSM and applicant are listed as his parents.

	c.  A copy of "In the Circuit Court of the Fourth Judicial Circuit, in and for Clay County, Florida, Consent Final Judgment of Dissolution of Marriage" (filed by the FSM with the applicant named as respondent).

    	(1)  It shows, in pertinent part:

* they were married to each other on 25 August "1982" [sic]
* "there are no children born of this marriage"
* in paragraph 3 (Equitable Distribution of Assets), subparagraph d (Retirements/403B), the applicant:

* was granted entitlement to 50% of the FSM's monthly net military retired pay
* "shall be designated as a former spouse beneficiary for the SBP"

    	(2)  They agreed to the Consent Final Judgment of Dissolution of Marriage by the Court on 15 May 2012.  (The date judgment was ordered by the Court does not appear on the copy provided by the applicant.)

	d.  State of Florida, Bureau of Vital Statistics, that shows the FSM died on
15 April 2014, he was divorced (no surviving spouse), and Sheldon W____ (son) was listed as the informant of the FSM's death.

   e.  DD Form 2656-7 (Verification of Survivor Annuity), W-4P (Withholding Certificate for Pension or Annuity Payments), and Standard Form 1199A (Direct Deposit Sign-Up Form), all dated 9 June 2014, that show the applicant applied for the FSM's RCSBP as former spouse.

   f.  U.S. Army Human Resources Command, Fort Knox, KY, letter, dated
9 September 2014, that shows the Chief, Reserve Component Retirements Branch, notified the applicant that her request for a survivor benefit based on the military service of the FSM was denied.

       (1)  She was advised, "There is no provision in the law whereby a divorced former spouse may be granted a survivor benefit annuity.  Further, there is no provision in recently enacted 'former spouse' legislation that would allow an annuity to be paid to a former spouse unless both parties voluntarily enact the agreement within 1 year of divorce decree to provide an annuity in event of the service member's death.  According to the divorce decree, you were awarded former spouse coverage.  However, there is no record showing you or [the FSM] submitted the Election Statement for Former Spouse Coverage (DD Form 
2656-1)."

       (2)  She was also advised that she could apply to the Army Board for Correction of Military Records to review her case.

7.  In connection with the processing of this case, DFAS was asked to verify information relevant to the FSM's RCSBP elections, coverage, and participation.  On 4 June 2015, a DFAS official indicated there was no record of an application for RCSBP or any other records/documents.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  


10.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.  The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter.

11.  Public Law 97-252, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

12.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of decree of divorce.

   a.  Section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made, if the service person fails or refuses to make such an election.

   b.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order of filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's records should be corrected to show his RCSBP election was changed from spouse to former spouse coverage because their divorce judgment required the FSM to maintain SBP with former spouse coverage for the applicant.

2.  By law, the FSM was required to make an RCSBP election before the end of the 90-day period beginning on the date he received his 20-year letter (2 March 2001) and his failure to elect an option would result in the default election of option C.

   a.  In addition, since the FSM was married to the applicant at that time, the applicant's concurrence was required with any RCSBP election that the FSM might have made that was less than spouse (immediate) full coverage.

   b.  There is no evidence of record that shows the FSM completed an application for RCSBP with spouse coverage.  Thus, it is appears that Army officials failed to ensure proper compliance with procedures governing the administration of the RCSBP.
   
   c.  Therefore it would be appropriate at this time to show the FSM elected RCSBP, option C (immediate), spouse coverage based on full retired pay.

3.  Based on the evidence provided by the applicant, it appears the FSM and applicant divorced on 15 May 2012.  The Consent Final Judgment of Dissolution of Marriage, in pertinent part, directed the FSM to designate the applicant as a former spouse beneficiary of his SBP.

4.  Recognizing that there is no evidence the FSM enrolled in the RCSBP with spouse coverage, the Board notes there is also no evidence of record that shows the FSM complied with the court-ordered directive to maintain SBP with former spouse coverage.

5.  There is no evidence that the applicant notified DFAS to change the FSM's SBP coverage from spouse to former spouse coverage within 1-year of the divorce decree.

6.  The FSM died on 15 April 2014.  At the time, he was divorced (no surviving spouse).

7.  It is not necessary to determine whether the applicant substantially complied with the requirement to establish a deemed election under the facts of this case.  The FSM should have been enrolled in the RCSBP with spouse coverage.  In addition, the applicant was awarded SBP by a court of competent jurisdiction.  There is no evidence of record that shows her former husband remarried.  Thus, there is no other party with a superior interest.
8.  Therefore, in view of all of the foregoing evidence, it would also be appropriate as a matter of equity to correct the FSM's records to show his SBP category was changed from spouse to former spouse effective 15 May 2012.

BOARD VOTE:

__X______  ____X____  ____X_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM timely applied and elected the RCSBP, Option C, with spouse only coverage based on full retired pay and it was timely received by the proper authority; that he timely notified DFAS of his divorce from Willie Marie W----- and his SBP coverage was timely changed from spouse to former spouse coverage (full retired pay) on 15 May 2012 with his former spouse (Willie Marie W-----) named as the beneficiary, effective 15 May 2012; and entitlement to the survivor annuity effective 16 April 2014.

2.  As a result of the above correction, the DFAS should pay the applicant an annuity based upon the former service member's participation in the SBP with former spouse coverage, full base amount, retroactive to 16 April 2014, the day after his death, less the total costs of SBP premiums due.



      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20140016997



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ABCMR Record of Proceedings (cont)                                         AR20140016997



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