IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080016930 


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 that he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage.  

2.  The applicant states that the FSM paid SBP premiums from the date of his retirement until the date of his death and contends that it was his intention that after his demise, she would have an income.  She goes on to state that he was hospitalized shortly after he retired and they were told that he would never be able to live at home again.  A few years after he was hospitalized, he began to ask her for a divorce and told her to get on with her life and she refused.  She continues by stating that the FSM thought his divorcing her was in her best interest and he divorced her in 2003.  However, he continued to pay his SBP premiums and the Board should honor his wishes by giving her the SBP he paid for.  Additionally, neither she nor the FSM were aware that they had to notify the Defense Finance and Accounting Service (DFAS) of their divorce.

3.  The applicant provides a one-page letter explaining her application, a copy of her marriage license to the FSM, and a copy of their divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM initially served in the United States Navy from 28 June 1946 to
28 April 1948.

2.  The FSM enlisted in the Regular Army on 23 May 1962 and remained on active duty through a series of continuous reenlistments.  On 9 December 1967, while stationed at Fort Jackson, South Carolina, he married the applicant.  He was promoted to the pay grade of E-7 on 4 February 1970.

3.  On 6 September 1983, while stationed at Fort Benning, Georgia, the FSM applied for voluntary retirement to be effective 1 February 1984.  His request was approved and on 22 December 1983, he elected full spouse only coverage under the SBP.

4.  On 31 January 1984, the FSM was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) in the pay grade of E-7, effective 1 February 1984.  He had served 23 years, 6 months, and 9 days of total active service.

5.  The FSM filed for divorce from the applicant and the divorce was finalized on 29 September 2003.  The available divorce decree contains no provisions regarding the FSM's military pension or SBP benefits.  The FSM was residing in Georgia and the applicant was residing in South Carolina at the time of their divorce.

6.  The FSM died on 12 June 2008 in Dublin, Georgia.  His death certificate indicates his marital status as divorced but also indicates he had a wife of a name different from the applicant's name.  However, that individual appears to be an earlier former spouse of the FSM.

7.  The obituary published on 14 June 2008 in The Courier Herald in Dublin, Georgia indicates the FSM was survived by his former wife R____ J______ E______ of Pacific Grove, California, two sons, and five grandchildren.

8.  In the processing of this case a staff member contacted officials at the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio to ascertain the status of the FSM's SBP account.  Officials at the DFAS indicated that the FSM elected the full spouse only option.  The FSM's SBP annuity is not being paid to anyone and there is no record of the FSM being divorced.  Accordingly, his estate will be entitled to a refund of premiums from the date of his divorce.  There was no evidence in his records at the DFAS to show that he ever made a former spouse election.

9.  Public Law 92-425, the SBP, enacted on 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.  Retiring members and spouses were to be informed of the SBP options and effects.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

10.  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.  

11.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

13.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM made an irrevocable election for full spouse coverage at the time he completed the election forms just prior to his retirement.

2.  It appears that since there were no provisions contained in the divorce decree directing that the FSM provide SBP benefits to the applicant/former spouse that the FSM was either unaware that he had to notify the DFAS that he was divorced, in order to stop in SBP deductions or that he assumed that his continued payments would suffice to continue his election of SBP to the applicant, who was his former spouse.  

3.  The law provides that when an election of former spouse coverage is voluntary it must be made within 1 year of a divorce.  In the FSM's case, he was divorced at the time of his death and never made a former spouse election.  However, given the fact that he never notified the DFAS that he was divorced and he continued to make the SBP payments, it is reason to presume that he intended the applicant to receive his SBP benefits.  Accordingly, as a matter of equity, the FSM's records should be corrected to show that he requested his SBP coverage be changed to former spouse coverage on 30 September 2003 and that his request was received and processed by the appropriate office in a timely manner. 

3.  Inasmuch as the FSM had no other legitimate beneficiary, there is sufficient basis to grant the relief requested by paying to the applicant the FSM's SBP annuity retroactive to the date of the FSM's death. 

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 FSM requested his SBP coverage be changed to former spouse coverage on 30 September 2003 and that his request was received and processed by the appropriate office in a timely manner; and paying to the applicant the SBP annuity retroactive to the date of the FSM's death.



      _______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)                                         AR20080016930



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ABCMR Record of Proceedings (cont)                                         AR20080016930



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