IN THE CASE OF:
BOARD DATE: 15 October 2008
DOCKET NUMBER: AR20080009336
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, in effect, that Survivor Benefit Plan (SBP) election made by her deceased ex-spouse, a former service member (FSM), be changed from spouse to former spouse coverage.
2. The applicant states, in effect, she was not aware she had to submit a deemed election for SBP benefits within a year of her divorce, and that the FSM was suffering from Alzheimer's disease and was not competent enough to make the former spouse election directed in the divorce decree.
3. The applicant provides a Defense Finance and Accounting Service (DFAS) Letters, dated 23 & 24 April 2008, FSM Death Certificate, and Marital Settlement Agreement in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM's record shows he initially entered active duty on 5 December 1944, and that he was released from active duty for the purpose of length of service retirement on 30 September 1970. At the time, he held the rank of lieutenant colonel (LTC) and had completed a total of 21 years, 1 month and 12 days of active military service.
2. On 28 November 2002, the FSM and applicant were married and on
11 January 2006, they were divorced. In a Marital Settlement Agreement entered into by the applicant and FSM in conjunction with their divorce in the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida, it was agreed and ordered that the FSM would continue to maintain the applicant as beneficiary for his SBP and would continue to pay the premiums associated with the SBP benefit. The FSM authenticated the agreement with his signature certifying that he intended to be bound by it.
3. On 6 January 2008, the FSM died.
4. The applicant provides a DFAS letter, dated 24 April 2008, which informed the applicant she should submit a request to this Board that the SBP election be changed from Spouse to Former Spouse. This letter confirms the FSM continued to pay SBP premiums through the date of his death.
5. The DFAS pay records pertaining to the FSM show that the FSM elected
Spouse Only SBP coverage at a reduced base amount of $612.07 and that the applicant was originally named and remains the beneficiary. It also confirms the FSM continued to pay SBP premiums through the date of his death.
6. 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. 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 one year of the date of the court order or filing involved.
7. When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce. When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily. Otherwise, participation remains in a suspended status until the retiree gains another spouse, who will become the beneficiary after completing one year of marriage unless the retiree desires not to resume spouse coverage, which is an option. There is no provisions allowing the former spouse to request a deemed election when SBP is not court-ordered.
DISCUSSION AND CONCLUSIONS:
1. The applicant's claim of entitlement to a SBP annuity based on the FSM's death was carefully considered and found to have merit. By law, former spouse SBP elections must be made within 1 year of a divorce.
2. The evidence shows that the FSM agreed to continue SBP coverage for the applicant in the marital settlement agreement entered into in conjunction with their divorce on 11 January 2006. Although the FSM did not change his SBP coverage to former spouse within 1 year of the divorce, it appears his intention to continue the applicant's coverage is clear, as evidenced by the fact he made no change to his SBP election subsequent to the divorce and he continued to pay SBP premiums through the date of his death.
3. Further, there is no evidence that the FSM remarried, as evidenced by the fact he did not modify his SBP election to name a new spouse as beneficiary prior to his death, as evidenced by DFAS pay records.
4. 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.
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 showing the FSM changed his SBP election from Spouse to Former Spouse on
11 January 2006, the date of his divorce from the applicant; and by providing the applicant all SBP annuity payments due from 6 January 2008, the date of the FSM's death.
_______ 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.
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