PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:             7 October 2003   
	DOCKET NUMBER:   AR2003087638

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. Robert Duecaster		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 that his Reserve Component Survivor Benefit Plan (RCSBP) election be changed from spouse and child coverage to former spouse coverage with 20 percent supplemental coverage.

3.  The applicant states, in effect, that his divorce decree did not award the SBP to his former spouse; however, a community property settlement has since ordered her to receive the SBP.  He has not remarried.

4.  The applicant’s military records show that he was born on 15 January 1943.  He enlisted in the Army National Guard on 1 May 1961.  He was commissioned in the Army National Guard on 31 July 1967.

5.  The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 19 February 1982.  On 25 March 1982, he elected to enroll in the RCSBP for spouse and children coverage, full base amount, option C.

6.  The applicant divorced on 9 July 2002.  The Community Property Settlement, dated 7 August 2003, awarded his spouse 50 percent of his retired pay and ordered the applicant to change his RCSBP coverage to former spouse coverage.  The cost of the RCSBP would be deducted from his spouse's portion of the disposable retired pay.

7.  A DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage) dated 5 March 2003 indicates that the applicant had not remarried as of that date, that he elected to change his RCSBP coverage to former spouse coverage with 20 percent supplemental coverage, and that the election was being made due to a voluntary written agreement incorporated in, ratified, or approved by a court order.  (He apparently no longer had dependent children from this marriage.)

8.  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.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  

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

11.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

12.  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.  

13.  Title 10, U. S. Code, section 1458(d) permits a person who elects to provide coverage under the SBP for a former spouse to elect to provide a supplemental spouse annuity for that former spouse.  Any such election must be signed by the person and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.

CONCLUSIONS:

1.  The applicant divorced 9 July 2002.  The Community Property Settlement dated 7 August 2003 ordered him to change his RCSBP coverage to former spouse coverage.  The DD Form 2656-1, changing the applicant's RCSBP coverage to former spouse coverage with 20 percent supplemental RCSBP coverage, is dated 5 March 2003.  The Board accepts the DD Form 2656-1 as sufficient evidence to show the applicant requested his RCSBP coverage be changed to former spouse coverage with 20 percent supplemental coverage within 1 year of the date of his divorce.  

2.  Therefore, the applicant's records should be corrected to show he sent the  DD Form 2656-1 to the appropriate office within 1 year of the date of his divorce where it was processed in a timely manner to effect the change of his RCSBP election to former spouse coverage with 20 percent supplemental coverage.

3.  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 the applicant requested within 1 year of the date of his divorce that his RCSBP coverage be changed to former spouse coverage and he elected to provide 20 percent supplemental coverage and that his request was processed in a timely manner.

2.  That the applicant provide the divorce decree and property settlement agreement to the Defense Finance and Accounting Office – Cleveland Center.

BOARD VOTE:  

__fne___  __sp____  __rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087638	
SUFFIX		
RECON		
DATE BOARDED	20031007	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.