IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080015572 


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 reconsideration of her earlier request that the records of her former husband, a former service member (FSM), be corrected to show that he changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage at the time of their divorce.

2.  The applicant states, in effect, that she had been married to the FSM for 24 years when they divorced in 2002 and that she believes the reason the FSM did not make any changes to the SBP election after their divorce is because he understood and believed after so many years of sacrifice, she deserved to be the beneficiary of his SBP benefits.  She went to Fort Buchanan, Puerto Rico, for assistance and was given a list of lawyers who could assist her with her SBP claim.  She was unaware of the steps that she should have taken in reference to SBP.  She learned the FSM was remarried.  However, he died two months after he remarried.  Initially, there was an error in processing the SBP annuity to the second spouse since she was not married to the FSM more than one year.  However, the Defense Finance and Accounting Service (DFAS) recently established that the second spouse was ineligible for the SBP annuity since she was married to the FSM for less than one year when he died. 

3.  The applicant provides two letters, dated 4 August 2008 and 29 August 2008, from DFAS in support of her application.




CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050007093, on 4 April 2006.

2.  The FSM's records show that he was born on 16 February 1951.  He enlisted in the Regular Army on 19 July 1977 with prior enlisted service.  He married his former spouse, A__, the applicant on 17 February 1978.  He subsequently executed a series of reenlistments in the Regular Army and was honorably separated on 30 September 1995 and placed on the retired list in his retired grade of sergeant first class (SFC) on 1 October 1995.  

3.  The FSM’s records also show that he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 21 August 1995.  He elected not to participate in the SBP.  

4.  The FSM’s records also contain a spousal concurrence form letter which shows, in pertinent part, the applicant’s SBP election of coverage for spouse only on a reduced base amount of $800.00.  This document also shows that the spouse (the applicant) indicated “I do not agree with my spouse’s SBP election for no coverage.”  This document was signed by the applicant and a witness on 17 August 1995.

5.  On 26 October 1995, DFAS notified the FSM that it had not received his SBP Election Certificate and was therefore enrolling him in the SBP default election for spouse only coverage.  That same month, DFAS sent the FSM his latest Retiree Account statement which shows his SBP "spouse only" premium had increased to $100.53, to be deducted from his monthly gross retired pay.  

6.  On 18 January 2002, the FSM and applicant were divorced.  The divorce decree is silent with respect to the FSM maintaining the former spouse as a beneficiary on his SBP. 

7.  There is no indication that the FSM informed DFAS of his divorce or that he sought to discontinue paying SBP premiums. 

8.  On 7 March 2005, the FSM married his second wife W____.  However, it is unclear if he notified DFAS of his remarriage.

9.  On 29 April 2005, the FSM died.  His death certificate shows he was married to W____ on the date of death.
10.  In the processing of the applicant’s original case, dated 4 April 2006, coordination was made with DFAS to obtain copies of documentation relevant in the processing of this case.  This documentation shows that W____, the FSM’s second spouse, submitted a DD Form 2656-7 (Verification for Survivor Annuity) on 27 May 2005 and indicated that she was married to the FSM on 14 February 2004.  Accordingly, an annuity was established and was being paid to the second spouse, effective 29 April 2005, the date of the FSM death.  The discrepancy was pointed out to DFAS officials for review and further action.

11.  On 4 April 2006, the Board denied the applicant’s request for correction of the FSM’s records to show he changed his SBP election from spouse to former spouse within one year of their divorce.  The Board further informed the applicant that the issue of SBP annuity entitlement could not be determined at the time because it was being reviewed by DFAS.  The Board further informed the applicant that should DFAS determine that the FSM’s second spouse is not eligible for the FSM’s SBP annuity, or the applicant can provide irrefutable evidence that the second spouse was not married to the FSM prior to 7 March 2005, she was encouraged to submit a request for reconsideration of her claim.

12.  On 4 August 2008, by letter, DFAS notified the applicant that the FSM’s second spouse is not eligible for an SBP annuity because she was married to the FSM for less than one year when he died.  She was also advised to submit a request for reconsideration to this Board.

13.  On 19 August 2008, by letter, DFAS notified the applicant that a determination was already made that the FSM’s second spouse was ineligible for the SBP annuity.  Accordingly, she was encouraged to submit her application for reconsideration to this Board.

14.  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.

15.  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.






16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her former husband should be corrected to show that he changed his SBP coverage from “spouse” to “former spouse” coverage pursuant to their divorce decree.  

2.  The evidence of record shows that the FSM elected not to participate in the SBP.  His spouse at the time, the applicant, did not concur with his election.  He was enrolled in the SBP by default election.  When the applicant and the FSM were divorced in January 2002, DFAS put him on notice that the SBP premiums for spouse coverage cost him $100.53 monthly.  The FSM continued to pay SBP premiums each month for over three years until his death in April 2005.  Given that he had no other potential beneficiary at the time, it is reasonable to infer he had a change of heart and intended for the applicant to receive an SBP annuity.

3.  The evidence of records further shows that the FSM was remarried on 
7 March 2005, but died less than two months after his marriage.  Furthermore, due to an unknown discrepancy and/or a processing error, the FSM’s second spouse filed the necessary forms to claim the SBP annuity and was accordingly paid by DFAS, effective 29 April 2005.  

4.  The evidence of record also shows that DFAS conducted a review of the claim submitted by the FSM’s second spouse and determined that the second spouse was married to the FSM for less than the required one year to qualify for SBP benefits.  Accordingly, the FSM’s SBP annuity was stopped on an unknown date.

5.  There is sufficient evidence to show that it was the FSM's intent to continue to provide the SBP for the applicant.  Therefore, it would be equitable to correct the FSM's records to show he changed his SBP coverage to former spouse coverage after their 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 amendment of the ABCMR’s decision in Docket Number AR20050007093, dated 4 April 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he changed his SBP coverage from spouse to former spouse coverage on 19 January 2002 and that his request was received and processed by the appropriate office in a timely manner; and

	b.  that the applicant be paid the SBP annuity as a result of the above correction, retroactive to the day following the FSM's death on 29 April 2005. 





															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)                                         AR20080015572



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ABCMR Record of Proceedings (cont)                                         AR20080015572



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