IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080004565 


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 that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he timely changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage.

2.  The applicant states that when she and the FSM were divorced, the divorce decree indicated that the FSM would name her as the beneficiary under the SBP. She further adds that she was not informed that it was her responsibility to inform the Army of the divorce and her award of the SBP annuity.

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

	a.  Final Divorce Decree and Order, dated 28 March 1996.

	b.  The FSM's Death Certificate, dated 1 December 2007.

	c.  Certificate of Marriage, dated 25 April 1983.

	d.  Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, letter, dated 9 January 2008 (erroneously shown 9 January 2007), denying the SBP benefits.

4.  On 29 April 2008, by fax, the applicant provided the following additional documentary evidence in support of her application:

	a.  Self-authored letter, dated 29 April 2008.

	b.  DD Form 2656-7 (Verification for Survivor Annuity), dated 11 December 2007. 

	c.  Financial Management Service (FMS) Form 2231 (Direct Deposit), dated 11 December 2007.

	d.  Internal Revenue Service (IRS) Form W-4P (Withholding Certificate for Pension of Annuity Payment), dated 11 December 2007. 

	e.  Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), dated 11 December 2007.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 16 January 1930 and was appointed as a 2nd lieutenant in the U.S. Army Reserve (USAR) on 20 May 1955.  He was subsequently appointed in the Regular Army and served in several command and staff positions and was placed on the retired list in his retired grade of lieutenant colonel on 31 October 1976.  He was credited with 24 years and 6 months of total active service.

2.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 21 October 1976, indicates that at the time of his retirement, he elected full SBP coverage for spouse and dependent children.  His spouse at the time was Joyce.

3.  The FSM’s records show that the FSM's first spouse, Joyce, died on 25 October 1980. 

4.  On 25 April 1983, the FSM married his second spouse, Avis (the applicant).

5.  On 28 March 1996, the applicant and the FSM were divorced.  The Divorce Decree ordered that the FSM would maintain Avis on his government (U.S. Army) survivor benefit plan.  The Decree further ordered that the FSM would name Avis on his military retirement plan for survivor benefits and that he could not remove her absent further court order.




6.  The FSM’s records show that the FSM did not inform Defense Finance and Accounting Service (DFAS) of his remarriage and subsequent divorce.  However, records further show that he continued to pay SBP premiums until his death on 1 December 2007, at the age of 77.  His death certificate shows he was divorced at the time.

7.  On 9 January 2008, by letter, the Retired and Annuity Pay Branch, DFAS-Cleveland, Ohio, notified the applicant that she was not entitled to receive an annuity under the SBP because the FSM’s military pay record reflected that he did not make a request to change his election to former spouse coverage, nor did the applicant make a deemed election for former spouse coverage. 

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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

10.  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.

11.  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.

12.  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.

13.  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, the SBP benefits, at his expense, to Avis, his former spouse.  The State court further decreed that the FSM was to take appropriate measures to ensure Avis, his former spouse remained the beneficiary of the SBP.

3.  The evidence of record at the DFAS–Cleveland Center shows that the FSM continued to pay SBP premiums after the divorce and until his death, a period of over 11 years. 

4.  There is sufficient evidence to show that it was the FSM's intent to continue to provide the SBP for the applicant.  In addition, it appears the FSM did not remarry after his divorce from the applicant, so there cannot be a widow who may also claim the SBP benefit.  Therefore, it would be equitable to correct the FSM's records to show he changed his SBP coverage to former spouse coverage within one year of 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 29 March 1996 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. 





       ___        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)                                         AR20080004565



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ABCMR Record of Proceedings (cont)                                         AR20080004565



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