IN THE CASE OF:	  

		BOARD DATE:	       16 DECEMBER 2008

		DOCKET NUMBER:  AR20080013924 


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 former spouse of a deceased former service member (FSM), requests, in effect, that the Survivor Benefit Plan (SBP) election made by the deceased FSM be changed from spouse coverage to former spouse coverage. 

2.  The applicant essentially states that the FSM failed to comply with a court order to convert his SBP from spouse coverage to former spouse coverage within 30 days of the date their marriage was dissolved.  

3.  The applicant provides an undated and unsigned self-authored letter; the FSM's Certificate of Death; the FSM's Retiree Account Statement, effective 
2 April 2007; their Judgment of Absolute Divorce which stated, in part, that the FSM was ordered to convert his SBP from spouse coverage to former spouse coverage within 30 days of the dissolution of their marriage; an article from the Federal Daily Newsletter, dated 14 January 2008, regarding survivor annuities and divorce decrees; and a portion of an SBP briefing slide dealing with designation of beneficiaries in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he retired from the Regular Army on
31 October 1991 after completing 20 years of active duty service.  In conjunction with his retirement, the FSM completed a DA Form 4240 (Data for Payment of 

Retired Army Personnel) on 19 July 1991.  Part V (Survivor Benefit Plan Election) of this document shows that he was married to the applicant at the time, and that he elected full SBP spouse coverage.  This document also shows that the FSM did not have any dependent children or children incapable of self-support because of a mental or physical incapacity.

2.  On 10 June 1993, the FSM and the applicant divorced.  Their divorce decree shows that the FSM was ordered to name the applicant as his irrevocable SBP former spouse beneficiary within 30 days of their divorce.  This document also stated, in effect, that the applicant, as the former spouse, had the permission to contact the Defense Finance and Accounting Service herself regarding SBP elections.  

3.  The FSM died on 4 April 2007.  His death certificate shows that he was divorced at the time of his death, which indicates that there is no other person other than the applicant with a valid interest in receiving SBP annuity payments as a result of the death of the FSM.  His Retiree Account Statement, effective     2 April 2007, also shows that he was paying SBP premiums at the time of his death.

4.  During the processing of this case, coordination was made with the Defense Finance and Accounting Service in order to verify information relevant to the FSM’s SBP election.  This coordination confirmed that the FSM did not apply for former spouse SBP coverage for the applicant within 1 year of their divorce, and that the applicant did not make a deemed election within 1 year of their divorce.

5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

6.  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.

7.  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.

8.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of a deceased FSM, requests, in effect, that the SBP election made by the deceased FSM be changed from spouse coverage to former spouse coverage. 

2.  Although the applicant could have and should have made a written request that the FSM’s SBP be converted from spouse coverage to former spouse coverage within 1 year of their divorce, the evidence shows that an injustice occurred in this case.  Therefore, it would now be appropriate to correct the injustice done to the applicant due to the FSM’s failure to comply with the terms contained in their 1993 divorce settlement.
 
3.  The intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case.  The applicant’s court-directed entitlement to continued SBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.  

4.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request that a former spouse SBP coverage election be deemed to have been made within 1 year of the divorce.    

5.  The evidence of record confirms the FSM agreed to continue SBP protection for the applicant as part of their 1993 divorce.  It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 30 days of the dissolution of his marriage to the applicant.   As the FSM’s death certificate shows that he was divorced and had not remarried prior to his death, there appears to be no other person other than the applicant with a valid interest in receiving SBP annuity payments because of the death of the FSM.

6.  Given the FSM’s agreement to the court-directed continued SBP protection for the applicant as a former spouse, and given that the applicant continued to make SBP payments until his death, it would be appropriate and serve the interest of justice, compassion, and equity to grant the requested relief.  

7.  In view of the facts of this case, the record should be corrected to show the applicant made a timely request for a deemed election of former spouse SBP coverage consistent with the terms of her 1993 divorce. 

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 FSM be corrected by showing the applicant timely filed a deemed election changing the SBP election from full spouse coverage to full former spouse coverage, and that the applicant is the annuitant for the FSM’s SBP.



      ______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)                                         AR20080013924



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ABCMR Record of Proceedings (cont)                                         AR20080013924



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