IN THE CASE OF:	  

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140017311 


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, in effect, correction of the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and changed his election from spouse to former spouse so that she may be entitled to an annuity.

2.  She states no deemed election was in the divorce decree because she was never told this existed by either the military or her attorney.  She explains that she was married to the FSM from August 1975 until September 1997, during the entire time he served in the U.S. Army Reserve (USAR).  She requests consideration for SBP annuity since she was never given information concerning deemed election until last summer.

3.  She provides:

* Applicant's self-authored statement
* Divorce Decree
* State of Ohio Certificate of Death 
* Memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 27 April 1992
* Letter, U.S. Army Human Resources Command (HRC), dated 26 August 2014
* DD Form 1883 (SBP Election Certificate), dated 24 March 1993
* AHRC Form 249-E (Chronological Statement of Retirement Points), dated 29 July 2014
* DD Form 2656-7 (Verification for Survivor Annuity), dated 16 July 2014
* Letter, Defense Finance and Accounting Service (DFAS), dated 30 May 2014
* Driver License and Department of Defense/Uniformed Services Identification Card
* W-4P Form (Withholding Certificate for Pension or Annuity Payments)
* Direct Deposit Sign-up Form, dated 15 July 2014
* Certificate of Marriage
* Children birth certificates

CONSIDERATION OF EVIDENCE:

1.  On 8 September 1971, the FSM enlisted in the USAR.  On 29 July 1984, he was honorably discharged to accept an appointment as a commissioned officer in the USAR which was accomplished the following day.  His date of birth is shown as 2 October 1949.

2.  On 1 August 1975, the FSM and the applicant were married.

3.  On 27 April 1992, the FSM's 20-year letter was issued.  The letter stated that he was entitled to participate in the RCSBP which enabled him to provide an annuity for his spouse, and other eligible beneficiaries.  It further stated:

BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVED THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATION (DD FORM 1883).  IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ENTITLED TO SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60, YOUR SURVIVORS WILL NOT BE ENTITLED TO BENEFITS.  (Emphasis Added)

4.  On 24 March 1993, the FSM completed DD Form 1883 which indicated that he applied for RCSBP for spouse and children and he elected Option C (Immediate coverage) at a full base amount.  The form is listed as a "Certified True Copy." 

5.  On 24 September 1997, the FSM and the applicant divorced.  A Separation Agreement was adopted as part of the divorce decree.  Paragraph 4 of the Separation Agreement, Pension Plans, stated, in pertinent part, that the parties agree that the applicant's State Teacher's Retirement was hers free and clear of any claim by the FSM and that the FSM's pension and retirement benefits earned through the Army Reserves were his, free and clear of any claim by the applicant.  

6.  The FSM died on 9 November 2002.  The death certificate lists his marital status as divorced.

7.  On 30 May 2014, Retired and Annuitant Pay, DFAS, informed the applicant that their records did not indicate that the FSM was on the military retired pay roles.  Therefore, they were unable to provide the information she requested.   

8.  On 26 August 2014, the Chief, Reserve Component Retirement Branch, HRC, denied the applicant's request for SBP annuity based on the FSM.  The agency stated there was no provision in the law whereby a divorced former spouse may be granted SBP 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.  According to the divorce decree the applicant submitted, there was no provision for the FSM to provide former spouse coverage for his survivor benefit elections.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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 SBP 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 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  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 the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM and the applicant were divorced on
24 September 1997.  There is no evidence in the divorce decree or the separation agreement indicating that the FSM was required to retain the applicant as his beneficiary on his RCSBP as a former spouse.  In fact, it appears that the agreement clearly established that each party was entitled to keep his or her own pension and associated benefits.  Neither was given an interest in the other's retirement.  

2.  In view of the foregoing there is no basis for granting her request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20140017311





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017311



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1