RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070004116 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Scott Faught

Member

Mr. Roland Venable

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 former spouse coverage under the Survivor Benefit Program (SBP) from her deceased husband's estate.

2.  The applicant states that she is the beneficiary of her former husband's SBP as he initially elected upon his retirement from active duty.

3.  The applicant provides the following documents to support her request to correct her former husband's SBP beneficiary:

	a.  Her former spouse's Retiree Account Statement dated 1 February 2002 which shows that the deceased retiree paid for SBP spouse only coverage and that the spouse's date of birth (DOB) was "2 May 1940".  This form lists the deceased retiree's son as the "Arrears of Pay Beneficiary Information" payee with an allocation of 100 percent.

	b.  Copies of DA Form 4240 (Data for Payment of Retired Army Personnel) dated 13 November 1979 which shows the deceased retiree elected spouse only SBP coverage.  The form was properly authenticated and witnessed by the Retirement Services Officer.

	c.  A letter, dated 13 November 1979, to the applicant signed by the Fort Dix, New Jersey Retirement Services Officer that shows the applicant acknowledged in her own handwriting that the FSM elected to provide a reduced survivor's annuity.

	d.  Copies of the Certificate of Death for the retiree showing the date of death as 3 June 2005 in the state of New Jersey.

	e.  DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 30 November 1979 that shows the deceased Soldier retired after completing the required years of service for retirement.  

	f.  A letter from the Defense Finance and Accounting Service (DFAS), dated 16 February 2007, which states, in effect, that the applicant who is the former spouse is not the eligible SPB beneficiary per divorce decree records on file at DFAS.  The divorce decree did not award the SBP to the applicant nor did the applicant provide a deemed election to DFAS within one year from the date of divorce.  The attachments to this letter include a Direct Deposit application, DD Form 2656 (Verification for Survivor Annuity) undated, and W-4P (Withholding Certificate for Pension or Annuity Payments).
	g.  Divorce decree dated 3 September 1985, which shows the FSM retained as his personal property his military pension.

CONSIDERATION OF EVIDENCE:

1.  Records show the former service member (FSM) was born on 23 September 1940.  Records show the FSM entered military service on 20 April 1960 and served in the Regular Army and Army Reserves until his retirement on 30 November 1979.  He worked as a motor transportation operator and truck master throughout his career.  He served in the Republic of Vietnam for 4 years and 10 months.  He retired as staff sergeant /pay grade E6. 

2.  On 13 November 1979, the FSM completed DA Form 4240 (Data for Payment of Retired Army Personnel).  He elected SBP Spouse Only Coverage at the reduced annuity amount.  On the same day, the applicant acknowledged in a separate letter that the FSM would provide a reduced SBP annuity. 

3.  The date of marriage to the applicant is unknown.  The applicant and FSM divorced on 3 September 1985.  The divorce decree does not specifically address SBP coverage for the applicant.  The divorce decree did award the FSM all his personal property and household goods in his possession, his bank accounts, his car and his military pension.  At an unknown date, the FSM remarried.  He died on 3 June 2003.  Spouse coverage was in effect at the time of his death. 

4.  On 16 February 2007, the applicant was notified by officials from DFAS, that she was not eligible for an annuity because records at DFAS did not show the FSM awarded the SBP to the applicant in the divorce decree and the applicant did not submit a deemed election to DFAS within one year of the divorce.

5.  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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.  Elections are made by category, not by name.  An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.

6.  Public Law 94-496, enacted 14 October 1976 (but effective 1 October 1976), provided for the suspension of spouse costs if marriage ends in death or divorce.

7.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

8.  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.

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 she is the rightful beneficiary of the FSM SBP annuity as it is her specific birth date identified on the FSM Retiree Account Statement dated 1 February 2002.

2.  The FSM's SBP election of spouse coverage was in effect on the day he died. At the time the FSM and the applicant divorced, the state court decided that the FSM "… shall retain his military pensions."  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which is a change the evidence of record shows he did not make.

3.  SBP elections are made by category, not by name or inferred by birth date.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  In addition, since the FSM died with spouse coverage in effect, his legal spouse if in fact he was remarried at the time of his death would have been the lawful beneficiary of his SBP.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LS  __  __SF   __  ___RV __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





_____ Linda Simmons_________
          CHAIRPERSON




INDEX

CASE ID
AR20070004116
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071025
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.