IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20070017003 


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 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 from “spouse” to “former spouse” coverage.

2.  The applicant states, in effect, that she and the FSM were married for 25 years before they were divorced in 1993.  She further adds that their divorce decree directed that she would remain the beneficiary of the SBP even if the FSM remarried (which she states he did not) and that he specifically went to Fort Jackson, South Carolina, where he was given a handwritten document to be signed and notarized to demonstrate his compliance with the divorce decree.  She concludes that as further support to her claim, the FSM discussed the SBP with their daughter prior to his death and expressed to their daughter that he changed the coverage to ensure his former spouse was covered.  

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Self-authored statement, dated 9 September 2007.

	b.  Power of Attorney, dated 24 May 1980.

	c.  Certificate of Marriage, dated 1 April 1968.

	d.  The FSM's Death Certificate, dated 11 June 2007.

	e.  Hand-written and notarized agreement, signed by the FSM, dated        17 February 1996.

	f.  Final Divorce Decree and Order, dated 8 June 1993.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 29 September 1946, enlisted in the Regular Army on 23 September 1963, and married his spouse (the applicant) on 1 April 1968.  He subsequently executed a series of reenlistments in the Regular Army and was separated for the purpose of retirement, in pay grade E-5, on 30 September 1983.  He was credited with 20 years total active service.

2.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 26 September 1983, indicates that at the time of his retirement, he elected full SBP coverage for spouse and dependent children.   

3.  On 8 June 1993, the applicant and the FSM were divorced.  The Divorce Decree ordered that the FSM shall continue to maintain the “Wife” as the beneficiary of the Survivor Benefit Plan, and that she shall remain the sole beneficiary of said plan even if he remarries.  The Decree further ordered the FSM to execute any documents necessary for the “Wife” to retain and maintain any military benefits that she may be entitled to as a result of their marriage and the FSM’s military service.

4.  Records show that the FSM did not inform Defense Finance and Accounting Service (DFAS) of his divorce.  Records further show that he continued to pay SBP premiums until his death on 11 June 2007 at the age of 61.

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 (including Reservists).

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 ordered the FSM to take appropriate measures to ensure his former spouse remained the beneficiary of the SBP.

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, a period of about 14 years.

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:

__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 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 that he changed his SBP coverage from spouse to former spouse coverage on 9 June 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, retroactive to the date of the FSM's death. 



								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)                                       AR20070017003



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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