IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20070015475 


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 reconsideration of her request to have her deceased former husband’s records corrected to reflect that he elected former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that her former husband, a deceased former service member (FSM) made an SBP election change in 1988, after their second marriage and elected coverage for both spouse and children.  She further states that he intended for her to be covered under SBP; however, after their divorce in December 1997, he failed to change that coverage to former spouse coverage, despite the fact that he paid the premiums by personal check every month.  She continues by stating that he died in September 2006 and she has been unable to receive SBP benefits despite the fact that she was the executor of his estate and handled his affairs before his death.   

3.  The applicant provides copies of documents reflecting that he changed his election to spouse and child coverage and continued that coverage after their divorce.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070003430 on 18 September 2007.

2.  The FSM married the applicant the first time on 15 August 1970 and divorced her on 7 February 1983.   

3.  On 22 December 1983, the FSM made an SBP election for dependent children only coverage for the full amount of his retired pay.  

4.  On 7 February 1984, he was retired by reason of permanent physical disability in the pay grade of E-6.  

5.  The FSM remarried the applicant on 24 May 1987 and in March 1988, he submitted a request to have his SBP election changed to enroll his spouse (the applicant).  The record is silent as to when that change occurred; however, a Leave and Earnings Statement provided by the applicant shows that on 19 June 1998, the FSM was paying for spouse and child coverage under the SBP. 

6.  Meanwhile, on 22 December 1997, the applicant and the FSM were again divorced.  There is no evidence that the applicant submitted a request to change his SBP election to former spouse coverage.

7.  On 9 September 2002, the FSM applied for and was granted a full waiver of retired pay and began receiving his retired pay benefits from the Department of Veterans Affairs.  It was not until the applicant applied for an SBP annuity that officials at the Defense Finance and Accounting Service (DFAS) were notified that he was divorced and that he had passed away.

8.  The FSM died on 20 September 2006 and was listed as being divorced at the time of his death.  However, officials at the DFAS confirmed that the FSM continued to pay his SBP premiums until his death and that no one is currently drawing the FSM’s SBP benefits.   

9.  On 18 January 2007, a letter was dispatched to the applicant’s oldest son informing him that no allotments were being deducted from the FSM’s retired pay at the time of his death and informing him of the need to complete the necessary forms to settle the FSM’s retired pay account.  At the time of the FSM’s death, his youngest child was over 30 years of age and no longer dependent on the FSM. 

10.  A review of the 1997 divorce decree between the applicant and the FSM reveals that the applicant was to retain her future pension and retirement benefits and the FSM was to retain his Army retirement benefits.  Both parties agreed to that arrangement. 

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP 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.  It established procedures by which a former spouse could receive all or a portion of the court settlement as a direct payment from the service finance center.  The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the state (other than pursuant to military orders), domicile in the State, or consent.

13.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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. 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.  Notwithstanding that the FSM did not make a former spouse SBP election after his divorce, the fact remains that the FSM continued to pay his SBP premiums up until the time of his death, despite the fact that he essentially had no eligible beneficiary because his youngest child was too old to be eligible.  

2.  Therefore it is reasonable to presume that he was unaware of the requirement to make such an election within 1 year of divorce.  It is also reasonable to presume that he did intend for his former spouse (the applicant) to receive his SBP benefits because he continued to pay those premiums and he designated the applicant as the beneficiary of his life insurance policy.  

3.  The fact that the FSM continued to pay the SBP premiums when all he had to do was notify DFAS of his divorce, in order to suspend his payment of SBP premiums suggest that it was the FSM’s intentions that the applicant receive his SBP payments; however, he simply was unaware of the proper method to do so.

4.  Accordingly, it would be in the interest of justice and as a matter of equity to correct the FSM’s records to show that the FSM elected to change his SBP spouse and children coverage to former spouse and children coverage as of January 1998 and that the applicant be paid the annuity from the date of the FSM’s date onwards.   

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 amendment of the ABCMR’s decision in Docket Number AR20070003430, dated 18 September 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the FSM elected to change his SBP spouse and children coverage to former spouse and children coverage as of January 1998 and that the applicant be paid the annuity from the date of the FSM’s date onwards.





      ___        XXX                ___
                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)                                         AR20070015475





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ABCMR Record of Proceedings (cont)                                         AR20070015475



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