IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080004691 


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, as the former spouse of a deceased former service member (FSM), requests, in effect, that she be provided an annuity under the Survivor Benefit Plan (SBP). 

2.  The applicant states, in effect, that the FSM was suppose to file a Debt Election Form (sic), DD Form 2657 (Verification for Survivor Annuity), on 18 November 2004 and failed to do so; and, now there is no beneficiary information on the FSM’s computerized pay account.  She is unable to receive what is rightfully hers.  The divorce decree states that all insurance policies and beneficiaries remain the same unless agreed upon by both parties.

3.  The applicant provides a copy of her Marriage Bond, a copy of the FSM’s Death Certificate, a copy of the FSM’s Retiree Account Statement (DFAS-CL 7220), and a copy of his divorce decree in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 29 January 1973.  The FSM was married on 27 November 1975.  He was promoted to staff sergeant (SSG/E-6) on 5 August 1981.  

2.  The FSM’s personnel records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 12 November 1992.  Part V (SBP Election), of the DA Form 4240, shows that the FSM indicated that he was married and had dependent children.  He elected spouse only coverage with full base amount.  
3.  On that same day, the FSM completed a Supplemental SBP Election for Spouse/Former Spouse.  The form indicated that the FSM coverage must be based on full retired pay in order to make a Supplemental Spouse/Former Spouse Election.  He indicated none. 

4.  The FSM served until he was separated for the purpose of retirement on 31 January 1993.  He was placed on the Retired List effective 1 February 1993.  

5.  On 4 February 1993, DFAS sent a letter to the FSM informing him that in accordance with regulatory authority that coverage was established at maximum level because spousal concurrence was not received.  DFAS suggested that he contact the Retirement Service Officer at the nearest military installation for information on spousal concurrence and request for administrative change.

6.  The applicant provides a copy of her divorcee decree, which shows that she was divorced on 18 November 2002.  The divorce decree contains the words on page 3 "All insurance policies and beneficiaries currently in effect shall remain in effect unless agreed upon in advance, in writing, by both parties."  Page 4 contains the words "Both parties agree to execute the documents necessary to comply with Uniform Services Former Spouses Protection Act (USFSPA) as appropriate.  Said benefits exceed 20 or more years of service."

7.  The applicant provided a copy of the FSM’s Retiree Account Statement, with an effective date of 5 April 2007, which was prepared by DFAS, London, Kentucky.  It shows that the SBP coverage type was "spouse only" and that an SBP cost of $85.31 per month was deducted from the FSM’s pay.

8.  The FSM died on 14 December 2007.  The certificate of death indicates his martial status as divorced.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name, and are irrevocable except as provided for by law.

10.  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.  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 that court settlement as a direct payment from the service finance center.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected SBP spouse coverage prior to his retirement, on 31 January 1993, with full base amount.  The applicant and the former spouse married on 27 November 1975 and divorced on 18 November 2002.  The divorce decree indicates that the FSM agreed to execute the documents necessary to comply with the USFSPA as appropriate, in effect, to provide the SBP to his former spouse.  

2.  As part of the divorce settlement agreement, the applicant was required to elect SBP coverage for his former spouse; however, the applicant did not notify DFAS within one year of the divorce of his election for former spouse coverage, as required by the SBP statute.  The applicant also did not make a deemed election within the one year.  

3.  Based upon the SBP award in the settlement agreement, the FSM's desire to comply with it as evidenced by his continuing to pay SPB spousal premiums after the divorce apparently until his death, and there being no eligible spouse beneficiary, it would be equitable to change the applicant's SBP beneficiary to former spouse beneficiary. 

BOARD VOTE:

___x____  ____x___  ____x___  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:

	a.  to show the FSM changed his SBP coverage from "spouse" to "former spouse" beneficiary on 18 November 2002, the date of the FSM's divorce; and

	b.  that the FSM's request was received and processed by the
appropriate office in a timely manner.




       _   ___x____   ___
       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)                                         AR20080004691



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ABCMR Record of Proceedings (cont)                                         AR20080004691



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