RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070008929 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 he changed his Survivor Benefit Plan (SBP) election from spouse and child coverage to former spouse and child coverage.

2.  The applicant states, in effect, that she was married to the FSM for 16 years, and even though they had been divorced for 4 years, they had continued to have a close relationship and friendship because of the children.  She contends that neither she nor her former spouse knew about the requirement to make a deemed election of the SBP within one year of their divorce.  She further states that it was their mutual understanding that her former spouse named her as beneficiary of the SBP and had reassured her that he would continue to pay the premiums.

3.  The applicant provides copies of a letter from the Defense Finance and Accounting Service (DFAS), Verification For Survivor Annuity (DD Form 2656-7), and the FSM's death certificate.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 23 October 1946.  He enlisted in the United States Navy Reserve and served on active duty from 7 June 1965 to 30 March 1966.  He enlisted in the Regular Army on 31 March 1966 for 3 years.  On 24 January 1969, he was transferred to the United States Army Reserve.  On 14 July 1970, he again enlisted in the Regular Army for 3 years.  Beginning on 14 July 1973, he served in the USAR until 1 September 1981, when he again enlisted in the Regular Army.  On 23 September 1996, the FSM was retired due to a permanent physical disability.  He had attained the rank of master sergeant, pay grade E-8.  
3.  In the processing of this case, the Board analyst contacted the former spouse in an effort to obtain her marriage certificate and divorce decree.  She provided these documents.  

4.  The applicant was married to the FSM on 19 June 1984.  

5.  On 29 April 2002, the FSM and the applicant divorced.  The divorce decree states in pertinent part that the FSM agreed to continue the SBP for the benefit of the former spouse and to continue to pay the premiums.  The judgment of divorce was signed by the presiding judge on 6 May 2002.

6.  On 19 February 2007, the FSM died at age 60.  His death certificate shows his marital status as divorced and the applicant as the informant.

7.  Records at the DFAS show that the FSM, at the time of his retirement, elected spouse and child SBP coverage and never made any changes to this election.  He paid premiums based on this election until his death.  When the applicant submitted her claim for SBP annuity in 2007, DFAS informed her that since neither she nor the FSM made a deemed election within a year of their divorce, she was no longer an eligible beneficiary for SBP.  DFAS changed the FSM's election to child only and refunded the premium difference.  

8.  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.  
  
9.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 FSM elected, at the time of his retirement, to participate in the SBP for spouse and child coverage.  He and the applicant were divorced, effective 
29 April 2002.  The FSM agreed to continue to provide his former spouse with an SBP benefit, as recorded in their judgment of divorce signed on 6 May 2002.  The FSM never took any action to change his election; and, he continued to pay the premiums for both spouse and child until his death.

2.  The applicant’s contention that the FSM still wanted her to receive an SBP annuity appears to be corroborated by the FSM’s divorce agreement and his continued payment of the SBP premiums.  Furthermore, the applicant was listed as the informant on the FSM’s death certificate indicating that there was a continuing relationship after their divorce.

3.  The FSM had one year from the date of divorce to change his SBP coverage to former spouse coverage.  He failed to do so, and the applicant failed to make a request for a deemed election of the SBP for former spouse and children coverage within one year of the divorce as required by law.

4.  There is no evidence showing that anyone is currently receiving an annuity for the spouse portion of the FSM’s SBP.  

5.  Therefore, it would be equitable to correct the FSM’s records to show the applicant made a request for a deemed election of the SBP within the proper time frame and that she be paid the SBP annuity, less any unpaid or refunded premiums.

BOARD VOTE:

__JTM__  __JRM __  __SWF__  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 showing that the applicant made a request for a deemed election of the SBP for former spouse and children coverage on 6 May 2002; that her request was received and processed by the appropriate office in a timely manner; and that she be paid the SBP annuity for which she is now eligible as a result of this correction, less any unpaid or refunded premiums.





__     John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20070008929
SUFFIX

RECON
 
DATE BOARDED
2007//29
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
137.0400
2.

3.

4.

5.

6.