PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2001                   
	DOCKET NUMBER:   AR2000048553

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) former spouse coverage full base amount.

3.  The applicant states in effect, that she and the FSM were divorced in 1997, after 17 years of marriage.  The divorce decree awarded her a portion of the FSM’s retirement and to be named as the beneficiary of the Survivor Benefit Plan (SBP).  The FSM was ordered to immediately designate her as the beneficiary of the SBP and to provided her and the court with copies of documents, papers, and forms verifying that the necessary action had been taken and that he was in compliance with the court order.  The applicant states that she was told by the FSM on many occasions that he had taken care of the matter.  She even asked the FSM’s attorney on several occasions if he knew that the necessary action had been taken.  His attorney received the same response from the FSM as she did.  She called Camp Mabry and asked if she could get copies of the paperwork directly from them, she was told that she could not because of the privacy act and that the FSM was the only one that they could talk to.  The FSM died on 
23 July 2000, without submitting or signing any paperwork.  She has three sons that will need this money for their education, especially since there is no insurance or a will.

4.  The FSM was born on 29 January 1948.  He and the applicant were married on 4 July 1980.  After having prior service in the Regular Army and the U.S. Army Reserve, he enlisted in the Army National Guard on 5 January 1982.

5.  The FSM and the applicant divorced on 19 November 1997, after 17 years of marriage.  The divorce decree awarded the applicant a percentage of the FSM’s Pension/Retirement Pay.  It was further ordered and decreed that the applicant should remain or should be named beneficiary of SBP and that the benefits were to be continued and maintained in full force and effect and should not be altered or withdrawn by the FSM during his lifetime.  In addition the FSM was ordered to immediately designate the applicant as beneficiary and to provide her with copies of documents, papers, and forms that the necessary action had been taken.

6.  On 10 August 1999, the FSM received notification of eligibility for retired pay at age 60 (his 20-year letter), from the National Guard Bureau.  The letter was routed through the Texas State Adjutant General to the FSM.  

7.  On 17 March 2000, the FSM remarried.  

8.  On 23 July 2000, the FSM died from injuries due to an auto accident.

9.  An advisory opinion was provided by the Retirements and Annuities section, AR-PERSCOM, it stated that the applicant submitted an application for survivor benefit annuity, based on the military service of the FSM; however, her application was denied.  The advisory opinion further stated that it was the responsibility of the FSM to elect into the SBP upon completion of 20 years of qualifying service.  The FSM’s 20 year qualification letter was issued after his divorce.  A memo from the Adjutant General’s Department, Texas National Guard, stated that the FSM failed to elect to participate in the RCSBP.  A second application was received from the FSM’s current wife for SBP.  Her request was also denied due to the fact that they were not married for 1 year.

10.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 
30 September 1978, provided a way for those who had 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 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retire pay at age 60 or else wait until he/she applies for retired pay elect to participation in the standard SBP.

11.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as direct payment from the service finance center.  

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members to include members of the Reserve Components.  

14.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement).

15.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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 one year after the date of the decree of divorce.  If that person fails or refuses to make such an election, 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.  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 one year of the date of the court order or filing involved.    

CONCLUSIONS:

1.  There is no evidence of Government error in this case. 

2.  The law provides that if a person fails or refuses to make an election for former spouse coverage, the former spouse concerned may make a written request that such an election be deemed to have been made.  There is no evidence that the applicant did so. The Board believes that because of her lack of knowledge about SBP enrollment she might not have been aware that she could have done so. However, the FSM was fully aware of his responsibilities concerning SBP enrollment and the requirements of the court order.

3.  The Board concludes that as a matter of equity, fairness and the untimely death of the FSM, the applicant should be granted SBP annuity.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for 17 years the majority of his military career and three children were born from that union, two of which are still minors.  

4.  Therefore, as a matter of compassion and in the interest of the applicant and the minor children, the FSM’s records should be corrected to show he enrolled in the RCSBP for former spouse coverage, full base amount, option C, following receipt of his 20-year letter on 1 September 1999.  It would be appropriate for the RCSBP costs to be deducted from the annuity and that the annuity start retroactive to 23 July 2000, the date of the FSM’s death.

5.  The FSM remarried on 17 March 2000.  The present spouse applied for SBP,
however, her application was denied because she and the FSM had not been married for 1 year as required by Title 10 USC 1447, Chapter 73.
6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM concerned elected to enroll in the RCSBP, full base amount, with former spouse coverage, option C on 1 September 1999.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any RCSBP costs due.

3.  That the applicant be paid and annuity based upon the FSM’s election to participate in the RCSBP retroactive to 23 July 2000, the date of his death.

BOARD VOTE:  

__lls___  __jrs___  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000048553	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.