PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 August 2002
	DOCKET NUMBER:   AR2002072132

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to former spouse coverage.

3.  The applicant states the FSM and she were married and divorced three times and neither one of them was ever married to anyone else.  When he applied for retired pay, they were divorced but he identified her as his spouse.  On several occasions he told her that if anything ever happened to him she would receive part of his retired pay.  He continued to pay SBP premiums after he retired.

4.  The FSM’s military records show that he was born on 20 March 1940.  He initially enlisted in the Army National Guard in December 1957 and transferred to the U. S. Army Reserve in December 1963.  He and the applicant married for the first time on 6 March 1964.  They divorced for the first time on 8 February 1971.  They remarried on 25 September 1971.  He transferred back to the Army National Guard in December 1973.  They divorced for the second time on           13 February 1981.  They married for the third time on 25 May 1984.  

5.  The FSM’s notification of eligibility for retired pay at age 60 is dated 15 April 1988.  On 29 June 1988, he completed a Survivor Benefit Plan Election Certificate, DD Form 1883, and elected to participate in the RCSBP for spouse only coverage, full base amount, option C.  

6.  On 20 October 1994, the FSM and the applicant divorced for the third time.  The SBP is not mentioned in the divorce decree.  On 30 December 1994, he was discharged from the Army National Guard and transferred to the Retired Reserve.

7.  On 17 April 1999, the FSM applied for retired pay by completing a Data for Payment of Retired Personnel, DD Form 2656.  In item 13, he designated the applicant as his beneficiary for unpaid retired pay and identified her as his former spouse.  It item 14, he indicated his marital status was single.  In item 22, he listed the applicant as his spouse with a date of marriage of 6 March 1964.  He also completed a Reserve Component Supplemental Survivor Benefit Plan Election Certificate, DARP Form 3856, and elected Reserve Component Supplemental Survivor Benefit Plan (RC-SSBP) coverage at the 5 percent level for his spouse/former spouse.

8.  The FSM died on 25 October 2001.  His death certificate shows his marital status as divorced.  The applicant’s name is listed as the informant.  

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.

10.  Public Law 95-397, the 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  

11.  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.  

12.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

14.  The Defense Finance and Accounting Service verified that the FSM paid spouse premiums until his death.

CONCLUSIONS:

1.  There is no evidence of Government error in this case.  RCSBP/SBP elections are made by category, not by name.  When the FSM enrolled in the RCSBP in 1988, he was married to the applicant and he elected spouse coverage.  When they divorced in 1994, he should have notified the Army that he was no longer married.  At that time, he could have voluntarily changed his RCSBP coverage to former spouse coverage.

2.  However, it appears it was the FSM’s intention to provide the SBP annuity to the applicant.  He did not tell the Army that he was divorced and he continued to pay spouse premiums until his death.  When he completed his DD Form 2656, he clearly intended the applicant to be his beneficiary for his unpaid retired pay and even identified her as his “spouse” in one item on the form.  It appears that it would be equitable to show that the FSM changed his RCSBP spouse coverage to former spouse coverage at the time of their last divorce in 1994.

3.  In view of the foregoing, the FSM’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 changed his RCSBP coverage from spouse to former spouse coverage on 1 November 1994.

2.  That the applicant be paid the SBP annuity retroactive to 25 October 2001, the date of the FSM’s death.

BOARD VOTE:  

__JNS __  __INW __  __JAM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___       John N. Slone      ___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072132	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.