IN THE CASE OF:	

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080007341 


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 un-remarried former spouse of a former service member (FSM), requests, in effect, that her ex-husband's records be corrected to show he elected to provide her an annuity as his "former spouse" under the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that an SBP annuity is not being paid to her.  Her ex-husband died on 5 June 2006.  He paid the SBP costs from his military pension until his date of death.  Part of the divorce settlement clearly indicates she was to be the "sole beneficiary of said survivor benefits."  To date, she has not received any payments.

3.  In a self-authored addendum to her DD Form 149, Application for Correction of Military Record, the applicant invites the Board's attention to page 5 of their divorce settlement and to a DD Form 2694, Designation of Beneficiary Information, which was completed on 26 April 2006.  This invitation, it is believed, was to make the Board aware of a court order for the FSM to continue to provide the applicant SBP protection and his intent to abide by the order of the court.

4.  In support of her application, the applicant provides a self-authored addendum to her DD Form 149; a copy of their marriage certificate; a copy of pages 5, 7, and 8 of their divorce decree; a copy of a DD Form 2694 which was completed on 26 April 2006; and a copy of his certificate of death.

5.  In a follow up to her application for correction of military records, the applicant submitted a copy of the FSM's voluntary retirement orders with an effective date of retirement of 30 November 1971; a partial copy of the FSM's Retired Pay Statement which shows the status of his SBP coverage; a second copy of a DD Form 2694; a copy of letters addressed to her from the Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay Section, dated 9 June 2006 and 21 August 2006, respectively; a copy of a reissued Internal Revenue Service Form 1099-R, dated 4 October 2006; and a pay voucher, dated 26 December 2006, for a check made out to the applicant in the amount of $2,112.28, which was in addition to an originally issued check in the amount of $8,042.86 for a total of $10,155.14.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the FSM was inducted into the Army of the United States on 7 March 1951.  He served continually until 5 March 1959 when he was released from active duty.  On 7 April 1959, the applicant reenlisted in the Regular Army and served in an enlisted status until 9 December 1968 when he was discharged for the purpose of accepting an appointment in the Reserve as a warrant officer with a concurrent call to active duty.  The FSM served on active duty as a warrant officer one and later as a chief warrant officer two until he was separated for the purpose of retirement on 30 November 1971.  The FSM was transferred to the Retired Reserve in the rank of chief warrant officer two on 1 December 1971.  At the time of his transfer, the FSM had completed 20 years, 3 months, and 15 days of active military service.

2.  The evidence shows that the FSM and the applicant married on 6 October 1961.

3.  On 4 August 1971, the FSM submitted his request that he be released from active duty and voluntarily transferred to the retired list on 1 December 1971.  In the eighth paragraph of his request, he entered the following:  "I have not accomplished an election of options under the Retired Serviceman's Family Protection Plan (DD Form 1688).  I did not elect to participate."

4.  The FSM and the applicant divorced on 17 August 1998.

5.  The following appears on page 5 of their divorce decree:  "The parties recognize the Wife's right to a portion of the Husband's military retirement and she relinquishes her interest in said retirement except for the Survivor benefits with the United States Military Survivor Benefits Plan and any military life insurance available from the Husband.  The parties agree the Wife shall be the sole beneficiary of said survivor benefits.  The Husband shall continue to elect the survivor benefits and pay the premium for said benefits.  Additionally, the Husband shall continue to elect the maximum survivor benefits of fifty-five percent (55%) of his retirement pay.  The Husband shall, simultaneously with the Final Judgment of Dissolution of Marriage, sign all forms and notify the U.S. Military that the maximum survivor benefits plan should continue for [the applicant] and she shall be the sole beneficiary of said plan and he will pay the premium monthly."

6.  On 26 April 2006, the FSM completed a Designation of Beneficiary Information form.  The FSM designated the applicant as his beneficiary.

7.  The partial copy of the FSM's Retired Pay Statement shows the FSM elected to participate in the SBP and elected coverage for "spouse only."  The annuity amount payable was 55 percent of the annuity base amount until his spouse reached the age of 62.  Although the FSM did not have a "spouse" on the date he died, his former spouse's [the applicant's] date of birth, 8 May 1929, is shown.

8.  The FSM died on 5 June 2006.  The FSM's certificate of death shows when he died he was divorced and had no surviving spouse.

9.  In a letter addressed to the applicant from the DFAS Retired and Annuity Pay Section, dated 9 June 2006, she was advised that charges for the SBP were being deducted from the FSM's retired pay up until the time of his death.  They informed her that, according to their records, the FSM was not married at the time of his death.  In this same letter, the applicant was asked to provide a copy of the divorce decree or death certificate of the spouse so that a refund for SBP premiums could be included with the arrears payments due her and any other beneficiaries.  A copy of the FSM's death certificate, she was advised, was also needed.

10.  In the letter addressed to the applicant from the DFAS Retired and Annuity Pay Section, dated 21 August 2006, the applicant was provided the necessary forms to claim any unpaid retired pay due the FSM on the date of his death.

11.  On 26 December 2006, a check in the amount of $2,112.28 was sent to the applicant by the DFAS.  This check, it appears, represented an additional refund of SBP premiums that had been paid into SBP by the FSM before his death.  In the body of the pay voucher is an entry as follows:  "AOP [arrears of pay] due for 6/1 - 5/06 along with SBP refund for 11/1998 - 5/2006, originally issued $8,042.86 being issued difference for a total of $10,155.14."

12.  On 14 November 2008, a representative of the DFAS verified that the FSM was paying premiums for SBP coverage from his military retirement until the date of his death; however, the applicant was not named as his beneficiary for an SBP annuity.  There is also no evidence the applicant submitted a request to be deemed the beneficiary to receive an SBP annuity within the time period established by regulation after their divorce became final.

13.  Public Law 92-425, enacted on 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after their death to surviving dependents.  An election, once made, is permanent and irrevocable except as provided for by law.

14.  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.  

15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

16.  Title 10, U.S. Code, section 1448(b)(3), 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.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM indicated in his application for voluntary retirement that he did not desire to participate in the Retired Serviceman's Family Protection Plan, a predecessor to the SBP; however, the evidence shows, and a DFAS representative confirmed, that the FSM paid SBP premiums until the date of his death.

2.  The FSM and the applicant divorced on 17 August 1998 and as part of the divorce settlement agreement the FSM was required to elect SBP coverage for his "former spouse."  The FSM was ordered to continue his participation in the SBP at the maximum amount of 55 percent of his retired pay and to pay the premiums for said benefits.  The FSM was additionally ordered to sign all forms and notify the U.S. Military that the maximum SBP should continue for the applicant; however, the evidence shows that the FSM did not notify DFAS within 1 year of the divorce of his election for "former spouse" coverage as required by the SBP statute.  The applicant, as a "former spouse," also did not make a deemed election within the 1 year.  The evidence shows that the FSM continued to participate in the SBP for the maximum annuity amount and he continued to pay SBP premiums for said benefit.

3.  The evidence shows that the FSM did not remarry after their divorce.

4.  There is evidence the FSM attempted to fully comply with the order of the court shortly before his death when on 26 April 2006 he completed a DD Form 2694 and named the applicant as his beneficiary.

5.  Based on the evidence of record it appears the FSM clearly intended to continue to provide SBP coverage for the applicant as a "former spouse."  Thus, it would be appropriate to correct the record to show that the FSM changed his SBP election from "spouse" to "former spouse" on the date of his divorce from the applicant, and to provide the applicant all SBP annuity payments due from the date of the FSM's death.

6.  The evidence also shows that because the FSM took no action to change the applicant's relationship to him from "spouse" to "former spouse," all the premiums that were paid by the FSM for SBP premiums were returned to the applicant because there was no surviving "spouse" on the date of the FSM's death.

7.  The applicant should be advised that before an SBP annuity can be paid to her, it will be necessary for the DFAS to determine the amount of money that was refunded to her [from the total refund amount of $10,155.14] on and before 26 December 2006 which formerly had been collected towards payment of SBP premiums and which was refunded to her.  After that amount of money that represents SBP premiums refunded is recouped, the applicant will be entitled to payment of an SBP annuity.

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 by:

   a.  showing the FSM elected his SBP coverage be changed from "spouse" to "former spouse" beneficiary for the applicant on 17 August 1998;
   
   b.  showing that the applicant is entitled to an SBP annuity effective the date of the FSM's death, 5 June 2006; and
   
   c.  that an SBP annuity be initiated for her after the DFAS recoups SBP premiums that were refunded to her on and before 26 December 2006.



      ___________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)                                         AR20080007341



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ABCMR Record of Proceedings (cont)                                         AR20080007341



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