IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080009572 


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 the records of her deceased former spouse, a former service member (FSM), be corrected to show she correctly and timely filed a deemed election for former spouse coverage of his Survivor Benefit Plan (SBP).

2.  The applicant states that the FSM elected spouse and children coverage when he retired and that it was stated in their divorce decree that she would receive the SBP annuity. 

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

	a.  Certificate of marriage, dated 5 July 1958

	b.  Qualified Domestic Relations Order, dated 2 February 1998.

	c.  Report of Dissolution of Marriage, dated 19 March 1993.

	d.  DD Form 1883 (Survivor benefit Plan Election Certificate), dated 7 September 1979.

	e.  Applicant letter, dated 16 August 1993, from the applicant to the Defense Finance and Accounting Service (DFAS), Request to deem SBP election.

	f.  FSM’s letter, dated 19 January 1994, Request to change SBP election to former spouse.

	g.  Certificate of Death, dated 11 January 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 28 September 1931, enlisted in the U.S. Air Force (USAF) on 20 March 1951, and was honorably separated on 19 March 1955.  After a short break in service, he enlisted in the Kentucky Army National Guard (KYARNG) for a period of 3 years on 13 June 1955.   He was honorably discharged on 13 August 1956 to accept a commission in the KYARNG.

2.  The FSM’s records show he was appointed as a second lieutenant in the KYARNG on 14 August 1956 and married his spouse, Margaret, the applicant, on 5 July 1958. 

3.  On 14 June 1971, the Departments of the Army and Air Force, National Guard Bureau, Washington, D.C., issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

4.  On 6 July 1971, the FSM was honorably separated from the KYARNG in the rank of captain and was transferred to the Retired Reserve.

5.  On 7 September 1979, the FSM completed his SBP Election Certificate (DD Form 1883) by electing “Spouse and Children” coverage, Full amount, Option C. At the time, the FSM and his spouse had three children:  Margaret J, born on 13 February 1959; Mary R., born on 24 December 1960; and Charles F., born on 2 November 1970.  His spouse, the applicant, concurred with his election and placed her signature in the appropriate place.  

6.  On 19 March 1993, the FSM and his spouse, the applicant were divorced.  Their divorce decree is not available for review with this case.  There is no indication that the FSM made an election to change SBP coverage from “spouse” to “former spouse” within one year of the date of the divorce.  Furthermore, there is no indication that DFAS-Retired Pay Office received any request for deemed election from the applicant within one year of her divorce; nevertheless, the applicant submitted copies of two letters sent to DFAS as follows:

	a.  a letter, dated 16 August 1993, addressed from her to the DFAS-Retired Pay Office, stating “per my final divorce, dated March 19, 1993, the decree designates me as a former spouse beneficiary.  Therefore, I am deeming election for SBP coverage”; and

	b.  a letter, dated 19 January 1994, addressed from the FSM to the DFAS-Retired Pay Office, stating “this letter is to comply with final divorce decree, dated March 19, 1993.  SBP is to be changed from spouse to former spouse [Applicant].”

7.  The applicant submitted a copy of the Circuit Court of the Twentieth Judicial Court, Lee County, Florida, Qualified Domestic Relations Order, dated 2 February 1998, by which the FSM assigned a portion of his retirement benefits to his former spouse, Margaret.  This Order states:

“If the retirement plan will pay benefits to the alternate payee (former spouse) regardless of the death of the participant (FSM) without requiring the participant to elect a pre-retirement surviving spouse annuity and/or a joint and surviving spouse form of benefit with the alternate payee (former spouse) to receive or continue to receive benefits after the death of the participant (FSM), the alternate payee (former spouse) shall be treated as the participant’s (FSM) surviving spouse to the extent of the benefits awarded to her under this order.”

8.  The FSM turned 60 on 28 September 1991.

9.  The FSM’s records show he married Sandra at Fort Myers, Florida, on 10 June 1994.  However, there is no indication that the FSM informed DFAS of his remarriage.  Yet, records show that he continued to pay SBP premiums, until he died on 11 January 2006, at the age of 74.

10.  The FSM’s certificate of death shows he was divorced at the time of death; however, the facts and circumstances surrounding his divorce from Sandra are not available for review with this case.

11.  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.

12.  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.

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members, including Reservists.

14.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

15.  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.

16.  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 FSM elected to participate in the SBP for spouse and children coverage.  However, subsequent to making this election, he and the applicant were divorced on 19 March 1993.  The FSM agreed to continue to provide his former spouse with an SBP benefit, as recorded in their subsequent Qualified Domestic Relations Order and continued to make the premium payments.  

2.  The FSM had one year from the date of divorce to change his SBP coverage to former spouse coverage.  He did not do so, and although the applicant provided copies of letters that show she did make a request for a deemed election of the SBP for former spouse coverage within one year of the divorce as required by law, there is no indication that these letters were received by DFAS. 

3.  It appears that since the FSM agreed to continue to provide his first former spouse with an SBP benefit and since he continued to make premium payments, there is sufficient evidence to suggest that he intended to elect his former spouse to receive the SBP benefit.  Therefore, in the interest of justice, it would be equitable to correct the records to show the applicant made a request for a deemed election for former spouse beneficiary in a timely manner.

4.  The FSM was remarried on 10 June 1994; however, it is unclear if and when he divorced his second wife.  At the time his second wife was married to him, she was the beneficiary of his SBP annuity, since he did not change coverage from “spouse and children” to “former spouse.”  However, it is unclear if their divorce decree obligated the FSM to change SBP coverage from “spouse and children” coverage to (second) “former spouse” coverage, and once he and his second spouse were divorced, she was no longer his spouse.

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 applicant made a request for a deemed election for former spouse beneficiary within one year of her divorce to the FSM on 19 March 1993 and that DFAS affected the change.



      _________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)                                         AR20080009572



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009572



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1