IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20070016963 


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, the former spouse of a former service member (FSM), requests that she be paid an annuity under the FSM’s Survivor Benefit Plan (SBP).

2.  The applicant essentially states her then husband retired from the Army in 1991 and that they participated in the SBP for her future, but that after their divorce in 2004, the FSM failed to comply with a court order to designate her as his former spouse beneficiary under SBP within 1 year of the date of their divorce proceedings.  She also states, in effect, that the FSM told her before his death that he had changed his SBP election from spouse to former spouse, and that she figured it had been changed as she would have no reason to believe he would have said that he did if he in fact did not.  She further states that the FSM passed away on 5 March 2007, and that when she applied for an SBP annuity shortly afterwards, she was informed that the FSM's new wife of 2 years was the annuitant for his SBP.

3.  The applicant provides a self-authored letter, dated 29 October 2007, evidence indexed in an attached list of enclosures, and a notarized statement, dated 2 September 2008, from the FSM's spouse at the time of his death in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he was retired from the Regular Army on 31 October 1991 after completing more than 24 years of active duty and attaining the rank of command sergeant major.  In conjunction with his retirement, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 17 July 1991.  Part V (Survivor Benefit Plan Election) of this document essentially shows that he was married to the applicant at the time and that he elected SBP spouse only coverage in the reduced base amount of $363.00 which, at the time, provided for an SBP annuity of $199.65 before taxes.  On 7 August 1991, the applicant acknowledged that she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and that she understood and agreed with the decision made in Part V of the DA Form 4240 by the FSM.

2.  On 12 November 2003, the FSM and the applicant divorced.

3.  The applicant provided a military qualifying court order, dated 12 November 2003, which essentially shows that the FSM was ordered to name the applicant as his irrevocable SBP former spouse beneficiary within 1 year of their divorce.  This court order also stated that the applicant, as the former spouse, had the right under applicable law to contact the Defense Finance and Accounting Service (DFAS) herself and have action taken within 1 year of their divorce to deem that the FSM had made such an election.

4.  There is no evidence which shows the FSM applied for former spouse SBP coverage for the applicant within 1 year of their divorce.  There is also no evidence that the applicant made a deemed election within 1 year of their divorce.

5.  Information from the DFAS shows that the FSM married Myrtle J. L____ on 13 February 2005.  Myrtle changed her last name to the FSM's last name at the time of their marriage.

6.  The FSM died on 5 March 2007.

7.  The applicant provided a letter, dated 15 June 2007, from the DFAS to the FSM's spouse (Myrtle) at the time of his death.  This letter essentially shows that Myrtle was granted Dependency and Indemnity Compensation (DIC), which was greater than the reduced SBP annuity elected by the FSM.  As a result, it appears that Myrtle elected to receive the higher DIC payment in lieu of an SBP annuity, as she was not entitled to receive both due to the DIC payment being higher than the reduced SBP annuity.

8.  The applicant provided a notarized statement, dated 2 September 2008, from the FSM's spouse at the time of his death.  This statement shows that Myrtle waived any right to make a claim for an SBP annuity to the extent and so long as she received DIC and the remainder of the surviving spouse benefits.
9. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

10.  Title 10, U. S. Code, section 1448b3 (10 USC 1448b3), incorporates the provisions of the USFSPA 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 1 year of the date of the court order or filing involved.

11.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent, or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of an FSM, requests that she be paid an annuity under the FSM’s SBP.

2.  The intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case.  The applicant’s court-directed entitlement to continued SBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.

3.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request that a former spouse SBP coverage election be deemed to have been made within 1 year of the divorce.

4.  The evidence of record confirms the FSM agreed to continue SBP protection for the applicant as part of their 2003 divorce.  It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 1 year of their divorce as specified in the military qualifying court order.  As the FSM’s death certificate shows that he was married to Myrtle J. B_____ at the time of his death, and that they had been married for more than 1 year at the time of the FSM's death, she is the lawful beneficiary of the FSM's SBP.  She is currently drawing DIC instead of the SBP annuity.  In the future, should she lose her DIC eligibility she would probably also lose her eligibility for the SBP annuity.

5.  On 2 September 2008, Myrtle waived any right to make a claim for an SBP annuity to the extent and so long as she received DIC and the remainder of the surviving spouse benefits.  While the law prevents a current spouse from receiving both DIC and an SBP annuity when the amount of DIC exceeds the SBP annuity, there is no such restriction that prevents a current spouse from receiving DIC and a former spouse from receiving an SBP annuity at the same time.

6.  In view of the foregoing, it would be appropriate at this time to correct the FSM's military records as shown below.

BOARD VOTE:

____X____  ___X_____  ____X____  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 the applicant timely filed a deemed election changing the Survivor Benefit Plan election from spouse coverage to former spouse coverage, and that the applicant is the annuitant for the FSM’s SBP.


2.  The Board wants to thank the applicant for the sacrifices she made throughout the majority of the FSM's military career.



      _________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)                                         AR20070016963



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ABCMR Record of Proceedings (cont)                                         AR20070016963



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