IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20080015423 


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 ex-spouse of a deceased former service member (FSM), requests that the FSM's records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states, in effect, that upon their divorce the SBP benefit was not changed to former spouse because she and the FSM were unaware of the requirement to update his pay record within 1 year.  She contends that the FSM paid the SBP payments and assured her that it was his intention for her to receive SBP annuities upon his death.  Additionally, the divorce decree did not tell her that she had to apply within 1 year or she would be ineligible.

3.  The applicant provides a copy of an undated letter electing former spouse coverage under the SBP; a copy of a DA Form 2656-7 (Verification for Survivor Annuity), dated 12 May 2008; a copy of a Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 12 May 2008; a copy of an FMS Form 2231 (Direct Deposit), dated 12 May 2008; a copy of the FSM's Certificate of Death/State of Alabama; and a copy of her divorce decree.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 10 November 1958 and he enlisted in the Regular Army (RA) on 10 September 1976.  He continued to serve through a series of continuous reenlistments and he was promoted to the pay grade of E-5 on 15 October 1979.  He married the applicant on 19 June 1980 and he retired by reason of sufficient service for retirement on 30 September 1996, in the pay grade of E-5.  At the time of the FSM's retirement he elected spouse only coverage under the SBP.

3.  The FSM and the applicant divorced in Bell County, Texas on 11 July 2001 and the divorce decree directed that the FSM immediately designate the applicant, his former spouse, the beneficiary under the SBP and that she would continue to remain the beneficiary as a former spouse under that plan.

4.  The FSM died on 7 May 2008 of congestive heart failure at the age of 49 and his death certificate shows his marital status as divorced.

5.  Records at the Defense Finance and Accounting Service (DFAS) show that the FSM continued to pay SBP premiums until his death and that no one is currently receiving the annuity.  Officials at DFAS also indicate that neither the FSM or the applicant notified DFAS within 1 year of their divorce to change the applicant's status to former spouse.  Accordingly, her claim for an SBP annuity was denied.

6.  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.
  
7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted on 8 September 1982, established SBP coverage for former spouses of retiring members.

8.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

9.  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.

10.  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.  Although there is no evidence to show that either the FSM or the applicant requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears that it was the FSM's intent to provide the SBP annuity to the applicant.

2.  The FSM continued to pay SBP premiums after their divorce, he never remarried, and no one is currently receiving the annuity.  Therefore, it is reasonable to presume that the applicant believed that because he was paying the premiums, no further action was required and that his former spouse would receive the SBP annuity.

3.  Accordingly, it would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.

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 that the FSM made a written request to change his SBP coverage to former spouse coverage on 1 August 2001;
   
   b.  showing the request was accepted and processed by the appropriate office in DFAS a timely manner; and
   
   c.  that the applicant be paid the SBP annuity effective 7 May 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.

ABCMR Record of Proceedings (cont)                                         AR20080015423



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ABCMR Record of Proceedings (cont)                                         AR20080015423



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