IN THE CASE OF: BOARD DATE: 12 FEBRUARY 2009 DOCKET NUMBER: AR20080016598 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 requests, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 2. The applicant states, in effect, that according to their divorce decree she was to be designated as the beneficiary of the FSM's retirement benefits. She indicates that on 26 July 2002 she received evidence that she was the beneficiary and she called the Defense Finance and Accounting Service (DFAS) and confirmed it. However, someone allowed the FSM to change his election between 2002 and 2008. 3. The applicant provides the FSM's death certificate; the FSM's spouse's death certificate; documentation from her attorney; a Stipulation and Further Judgment on Reserved Issues; a DD Form 2293 (Application for Former Spouse Payments from Retired Pay); a Stipulated Order Modifying Stipulation and Further Judgment on Reserve Issued Entered 14 October 1994; letters, dated 4 May 1995, 12 January 1998, and14 August 2008 from DFAS; and a VA Form SGLV-8727 (Beneficiary Designation). CONSIDERATION OF EVIDENCE: 1. The FSM was born on 11 June 1938. He and the applicant married on 28 May 1960. Having prior enlisted service in the Army National Guard, he was commissioned a Reserve officer in the Army National Guard on 1 October 1962. 2. The FSM’s DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 18 August 1979, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and dependent children coverage, full base amount. 3. On 12 July 1986, the FSM was released from the Army National Guard in the rank of lieutenant colonel after completing over 30 years of service and transferred to the U.S. Army Reserve Control Group (Reinforcement). 4. On an unknown date, the FSM and the applicant divorced. The divorce decree is not available. 5. In support of her claim, the applicant provided a property settlement judgment (a Stipulation and Further Judgment on Reserved Issues), dated 14 October 1994, which states, in pertinent part, that the "Petitioner shall execute a survivorship clause for the benefit of Respondent pursuant to her one half community interest therein” (i.e., his National Guard retirement). 6. The FSM remarried in 1994. 7. On 27 February 1999, the FSM executed a DD Form 1883 wherein he enrolled in the SBP for spouse only coverage, full base amount. 8. The FSM's spouse died on 24 March 2007. 9. On 5 February 2008, the FSM died. His death certificate shows he was widowed. 10. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 11. 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. 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. They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage. 12. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 13. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members (reservists, too). 14. 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 had not yet made an SBP election. 15. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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 one 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. 16. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions were noted. SBP elections are made by category, not by name. As long as she was the FSM’s wife, she was the SBP beneficiary. Once they divorced she was no longer a beneficiary. 2. There is no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory one-year time limit. However, the applicant was married to the FSM for over 30 years. Although the FSM remarried, his new wife died in March 2007. He died 11 months later. He had no legal SBP beneficiary at the time of his death. While the applicant has not provided a copy of the divorce decree itself, she has provided a copy of a “Stipulation and Further Judgment on Reserved Issues” dated 14 October 1994 which contains the Court’s orders with respect to the division of property. This document is sufficient for the purposes of capturing the fact that the applicant was awarded a “survivorship” interest in her former spouse’s National Guard retirement pay and that he was required to “execute a survivorship clause” for the applicant’s benefit. Unfortunately, the applicant’s former spouse failed to discharge his obligation to change his SBP election from spouse to former spouse and the applicant did not request a deemed election in a timely fashion, although she has pursued the issue for several years. As a matter of equity and justice, it would be appropriate to correct his records to show he requested to change his SBP coverage to former spouse coverage in a timely manner. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM made a written request to change his RCSBP coverage to former spouse coverage in October 1994, within one year of the date of divorce, and the request was accepted and processed by the appropriate office in a timely manner. 2. The Board also recommends that the applicant be paid the SBP annuity retroactive to 5 February 2008, the date of the FSM's death. _______ _ _______ ___ 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) AR20080016598 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016598 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1