IN THE CASE OF:	

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080018666 


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 former spouse, a former service member (FSM), be corrected to show her entitlement to former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that she learned that she was not the beneficiary of the FSM’s SBP about two years ago.  She states that their divorce decree directed that she receive all benefits, an identification card, and medical care.  She indicates the FSM and she were married 23 years of his military career.  The applicant also states that the FSM gave her half his retired pay without any increases; however, she now has her portion of that pay sent directly to her.  Applicant also states that to the best of her knowledge the FSM has never remarried.  She asks that she be authorized SBP coverage.

3.  The applicant provides the following documents in support of her application:  Decree of Dissolution of Marriage; Support and Property Settlement Agreement; Marriage License; Military Personnel Records Jacket (MPRJ) document extracts; and an Amended Order.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the United States Army and entered active duty on 30 March 1962.  He and the applicant were married on 11 June 1961.


2.  The FSM’s MPRJ contains a DA Form 4240 (Data for Payment of Retired Army Personnel).  It shows that he chose to participate in the SBP for “spouse and children” coverage based on the reduced amount of $300.00 on 20 December 1984.

3.  The FSM retired on 28 February 1985, having completed 22 years, 10 months, and 9 days active military service.

4.  On 1 April 1987, the FSM and the applicant were divorced, after having been married for 25 years, 9 months, and 21 days. 

5.  The applicant provides Superior Court of Washington, County of Pierce, Support and Property Settlement Agreement, dated 1 April 1987.  This settlement agreement was approved and incorporated in the final judgment.  Page 5, paragraph 8 (Insurance) directs, in pertinent part, that the FSM will maintain the applicant as the beneficiary of his SBP.

6.  The applicant submitted a former spouse deemed election to the Defense Finance and Accounting Service (DFAS) on 3 July 2007. 

7.  During the processing of this case, a member of the Board staff contacted DFAS to determine the current SBP election status of the FSM's retired pay account.  The FSM's DFAS pay record shows that since 1 May 1993, there has been no SBP election or coverage.  

8.  There is no evidence of record to show that the FSM ever submitted a former spouse SBP election, or that the applicant ever made a deemed election request within one year of their divorce. 

9.  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.

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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.


11.  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.

12.  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.  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.  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 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 one 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 one year of the date of a court order of divorce.  The FSM failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce and the applicant failed to make a request for a deemed election within one year of the divorce as is required by law. 

2.  The evidence of record confirms the applicant and his former spouse were divorced on 1 April 1987.  The divorce decree directed that both parties comply with the terms of a property settlement agreement they had entered into, which included continued SBP coverage for the applicant as former spouse.


3.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for his entire 22 year, 10 month, and 9 day military career.  The court awarded the applicant SBP beneficiary status in the property settlement agreement portion of the divorce decree entered into by her and the FSM.  The FSM made her his SBP beneficiary at the time of his retirement from active duty, and there is no current SBP election.  It also appears the FSM has not remarried so no one has a vested interest in his SBP.  

4.  In view of the facts of this case, it would appropriate and serve the interest of justice and equity to correct the FSM's record to comply with the divorce decree and provide SBP coverage to the applicant as a former spouse.  

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 that the applicant properly submitted a request for a deemed “former spouse” SBP election in conjunction with the date of her divorce on 1 April 1987; by showing the applicant is the legal former spouse beneficiary for the FSM's SBP benefits; and by collecting all back SBP premiums due from the FSM's retired pay as a result of this correction.



      _______ _   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)                                         AR20080018666



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ABCMR Record of Proceedings (cont)                                         AR20080018666



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