RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070003999 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states, in effect, that she and the FSM were married for 19 years before they were divorced in 1993.  When the FSM died in December 2006, the applicant was told to contact the Army Review Board Agency (ARBA) in order to have the record corrected so she may apply for SBP benefits.

3.  The applicant provides a copy of the FSM's Death Certificate, a copy of Divorce Decree, and a self-authored statement explaining the circumstances of this request in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he reenlisted in the Regular Army, in pay grade E-4, effective 7 September 1976, with prior enlisted service.  The records further show that applicant was separated for the purpose of retirement and was transferred to the Retired Reserve, in pay grade E-6, on 30 November 1989.  He was credited with 20 years and 4 days total active service

2.  The FSM'S DA Form 4240 (Data for Payment of Retired Army Personnel) indicates that at the time of his retirement he elected full SBP coverage for spouse and dependent children.  The applicant's spouse signed and dated this form on 9 November 1989, indicating that she had received information explaining the available options and the effects of each.  She concurred with the SBP election made by the FSM. 

3.  On 22 October 1993, the applicant and the FSM were divorced.  The Divorce Decree ordered that the FSM designate his former spouse as the beneficiary of the SBP benefits and that she shall continue to remain beneficiary as his former spouse under the plan.  The Decree further ordered the FSM to immediately obtain, complete, sign, and return to the Defense Finance and Accounting Services (DFAS) the necessary forms to show his former spouse as the beneficiary of the SBP.  The FSM was also ordered not to revoke, change, amend, or withdraw the election of his former spouse as the SBP beneficiary during his lifetime.

4.  Records show that the FSM did not inform DFAS of his divorce.  Records further show that he continued to pay SBP premiums until his death on 28 December 2006 at the age of 57.

5.  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.

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

7.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

8.  Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

9.  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.

10.  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 contends that she is entitled to receive SBP benefits based on the death of her former spouse, a FSM. 

2.  At the time the FSM and the applicant divorced, the State court clearly ordered the FSM to continue, in full force and effect, providing the SBP benefits, at his expense, to the former spouse.  The State court further decreed the FSM to take appropriate measures to ensure his former spouse remained the beneficiary of the SBP and ordered the FSM to not revoke, alter, change, amend, or withdraw the coverage from the former spouse. 

3.  Evidence of record at the Defense Finance and Accounting Service – Cleveland Center shows that the FSM continued to pay SBP premiums after the divorce and until his death. 

4.  There is sufficient evidence to show that it was the FSM's intent to continue to provide the SBP for the applicant.  Therefore, it would be equitable to correct the FSM's records to show he changed his SBP coverage to former spouse coverage after their divorce.

BOARD VOTE:

__mjf___  __lwr___  __dws___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:




	a.  showing he changed his SBP coverage from spouse to former spouse coverage on 23 October 1993 and that his request was received and processed by the appropriate office in a timely manner; and

	b.  that the applicant be paid the SBP annuity as a result of the above correction 




							Michael J. Flynn
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003999
SUFFIX

RECON

DATE BOARDED
20070814
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
137.0400
2.

3.

4.

5.

6.