PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             26 August 2003                  
	DOCKET NUMBER:     AR2003087380

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert L. Duecaster		Member	
	Ms. Marla J. Troup		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 record of her deceased husband, a former service member (FSM), be corrected to show that she is entitled to receive the Reserve Component Survivor Benefit Plan/Survivor Benefit Plan (RCSBP/SBP) annuity he elected.

3.  The applicant states, in effect, that her deceased husband was divorced from his former wife on 10 July 1985.  She further claims that the divorce settlement and accompanying court order contain no provisions providing for former spouse RCSBP/SBP coverage for the FSM’s former spouse.  The applicant states that she alone should be the recipient of the FSM’s RCSBP/SBP annuity.  She claims that on 25 September 1985, following her marriage to the FSM, she called the office of the North Carolina State Adjutant General (AG) to see what procedure to follow to ensure she was listed as the FSM’s RCSBP/SBP beneficiary.  At that  time, she was alarmed to learn that the beneficiary status could not be changed and was irrevocable.  She states that the people she spoke to in the State AG’s office never informed her that there were exceptions in the case of divorce.  

4.  The applicant claims that the FSM’s last will and testament clearly shows that she is his sole beneficiary and heir.  She further states that at no time was the FSM informed or counseled in regard to changing his RCSBP/SBP beneficiary to his present wife since he and his first wife were divorced.  She claims that in 2000 she made some further inquiries and found out about the correct procedure to change a RCSBP/SBP beneficiary.  It is for these reasons that she believes a mistake was made that needs to be remedied immediately.  

5.  The FSM’s military records show that he enlisted in the Army National Guard (ARNG) on 18 July 1960.  He and his former spouse married on 10 August 1963, and he was discharged from the ARNG on 4 October 1980.  

6.  The applicant’s Notification of Eligibility for Retired Pay at age 60 (20 year letter) is dated 13 February 1981.  On 26 February 1981, he completed a SBP Election Certificate (DD Form 1883), in which he elected “Spouse Only, Full Base Amount, Option C” RCSBP/SBP coverage in Section II (Marital, Dependency, and Election Status).  The name of the applicant’s former wife was entered in Section III (Family Information) of the form, which is for information purposes only and is not an RCSBP/SBP beneficiary designation.  

7.  On 10 July 1985, the FSM and his former spouse were divorced.  The divorce decree did not mention the FSM’s RCSBP/SBP annuity or provide for former spouse coverage.  On 20 September 1985, the FSM was remarried to the applicant, and on 21 December 1998, the FSM died.  The record contains no evidence to suggest that the FSM changed his RCSBP/SBP “Spouse Only” coverage election subsequent to his divorce and remarriage, or prior to his death.

8.  The applicant submitted an application to this Board on 13 April 2002 requesting that she be granted the RCSBP/SBP  annuity.  She was advised that RCSBP/SBP elections are made by category and not name, and since the FSM did not change his coverage to former spouse coverage, she as the spouse at the time of the FSM’s death was the eligible beneficiary.  As a result, she was advised to apply to the Retirements and Annuities Branch, Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, in order to receive the FSM’s RCSBP/SBP annuity.  

9.  On 10 April 2003, the Supervisor of the Retirements and Annuities Branch, ARPERSCOM, provided an advisory opinion for the Board.  It indicated that the applicant selected his former wife by name as his RCSBP/SBP beneficiary, and since he did not change this beneficiary within a year of remarrying the applicant, that office recommended the applicant’s request be denied.  The applicant was provided a copy of this opinion on 8 May 2002 [sic].  To date, she has failed to respond.  

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 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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Normally an election, once made, is irrevocable except as provided for by law.  RCSBP/SBP elections are made by category, and beneficiaries are not designated by name.  For example, if a member elects “Spouse Only” coverage, in the case of divorce and remarriage, the spouse at the time of the member’s death is entitled to receive the annuity unless “Former Spouse” coverage was elected subsequent to the divorce.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that she is entitled to receive the RCSBP/SBP annuity elected by the FSM, and it finds this claim has merit.  By law and regulation, RCSBP/SBP coverage elections are by category and not by name.  

2.  The evidence of record confirms that the applicant elected “Spouse Only”, RCSBP/SBP coverage and made no revision of this coverage election to “Former Spouse” coverage subsequent to his divorce from his former spouse, remarriage to the applicant, or prior to his death.  Thus, the “Spouse Only” coverage he elected on 26 February 1981 remained in force, and as the spouse at the time of the FSM’s death, the applicant is entitled to receive his RCSBP/SBP annuity.  
3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned, as the FSM’s spouse at the time of his death, is entitled to receive the RCSBP/SBP “Spouse Only” annuity elected by the FSM on 26 February 1981; and by providing her any back annuity payments due minus any unpaid premiums.  

BOARD VOTE:  

__RJW__  __MT__  __RLD __     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond J. Wagner
		   CHAIRPERSON

INDEX

CASE ID	AR2003087380	
SUFFIX		
RECON		
DATE BOARDED	2003/08DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000	
2.		
3.		
4.		
5.		
6.