IN THE CASE OF:	  

		BOARD DATE:	  	  3 February 2009

		DOCKET NUMBER:  AR20080014562 

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 the deceased FSM, requests that his records be corrected to show she is entitled to Survivor Benefit Plan (SBP) annuity payments.

2.  The applicant states, in effect, that she and the FSM were divorced in October 2006 and in the divorce agreement she was awarded an SBP annuity if she survived the FSM.  The applicant also states that the Defense Finance and Accounting Service (DFAS) advised her that the appropriate paperwork was not completed within a year of her divorce.  The applicant further states, in effect, she submitted her divorce decree to DFAS in November 2006 to show her entitlement to an SBP annuity.  She was unaware that additional paperwork was required.  

3.  The applicant provides copies of their marriage certificate, dated 20 August 1982; "Judgment of Divorce," dated 30 October 2006; and the FSM's death certificate, dated 18 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The former service member (FSM) was born on 10 May 1936.

2.  On 24 July 1967, the service member enlisted in the Michigan Army National Guard (MIARNG) and served until he retired on 31 May 1996, at the age of 60.  The highest grade he held was staff sergeant.

3.  The applicant and the FSM were married on 10 August 1982.
4.  The FSM's records contain an unsigned copy of a DD Form 2656 (Data for Payment of Retired Army Personnel), dated 10 May 1996, (the day he turned 60) which designated the applicant as his sole SBP beneficiary and he elected "FULL" amount coverage.  Section IX (Certification) was not signed by the FSM, witnessed, or dated.  

5.  The applicant and the FSM divorced on 30 October 2006.  Item 8 (Retirement Benefits) on page one of the Judgment of Divorce shows that any rights of either party in any pension, annuity, or retirement plan benefit of the other, whether vested or unvested, accumulated or contingent are provided for elsewhere in this judgment.  

6.  The applicant submitted a handwritten copy of page two of her Judgment of Divorce which states it was furthered ordered that the pl (plaintiff) is awarded survival benefits of the df (defendant's) pension from the federal government.

7.  On 18 February 2008, the FSM died in Rochester Hills, Michigan.  He was 
71 years old at the time of his death.  The FSM was not married at the time of his death.

8.  The applicant submitted a copy of a letter addressed to DFAS U.S. (United States) Retirement Pay, dated 22 April 2008, in which she states per her divorce agreement she was awarded the FSM's survivor benefits.  She also states that she submitted a copy of her divorce decree to DFAS in November 2006 and then called to ensure the paperwork was received but was not told that she had to file a formal spousal claim (deemed election).  She continues to state that after the FSM died she again spoke to someone who told her where to send the death certificate and what her entitlement was.  She further states she was waiting for forms to complete and when she did not receive them, she spoke with D--- M who told her that since she had not completed her forms within 1 year of her divorce she was not entitled to survivors benefits.  The applicant concludes by stating that she was married to the FSM for 25 years and would have not requested survivor benefits through her divorce only to not file the correct documents through DFAS and lose her benefits.  

9.  The Military Pay Office, DFAS confirmed that the FSM married the applicant on 20 August 1982.  The DFAS representative also confirms that the FSM's DFAS file contains an unsigned, unwitnessed, and undated SBP election rendering it invalid.  However, his failure to elect an option should have defaulted to Option C "Immediate Spouse Coverage."

10.  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.  

11.  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.  

12.  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.

13.  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.”

14.  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.  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 a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce. 

2.  There is no evidence in the available records and the applicant did not provide substantiating evidence which shows the FSM made an SBP election when he retired.  Therefore, the SBP election should have defaulted to Option C "Immediate Spouse Coverage."  The DFAS representative also stated there was no record that SBP premiums were being deducted from the FSM's retired pay.  

3.  The evidence of records shows the divorce decree addressed SBP benefits.  The applicant indicated that she attempted to make a request for a deemed election within the proper timeframe.  As the FSM was divorced at the time of his death, there is no other legal SBP beneficiary.  Therefore, it would be equitable to correct the records to show that the applicant is the eligible SBP 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 by:

	a.  showing the applicant made a request for a deemed election for former spouse coverage within one year of her divorce to the FSM, on 30 November 2006, and that DFAS effected the change; 

	b.  advising the applicant that DFAS will be instructed to collect any SBP costs due, as a result of this correction; and

	c.  paying the applicant the SBP annuity retroactive to the day after 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.
ABCMR Record of Proceedings (cont)                                         AR20080014562



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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