IN THE CASE OF:	  

		BOARD DATE:	       7 May 2009

		DOCKET NUMBER:  AR20080018916 


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] requests, in effect, that the deceased former service member's (FSM's) records be corrected to show that she was designated the former spouse, beneficiary of the Survivor Benefit Plan (SBP) annuity.

2.  The applicant states, in effect, that in 1993 she advised the Defense Finance and Accounting Service (DFAS) that her court decree directed the FSM to name her the “former spouse” beneficiary for the SBP annuity and she provided DFAS a copy of her divorce decree.  She also requested to be notified if any additional information was required.  She received no response and she trusted that everything was in order. 

3.  The applicant provides copies of her 4 August 2004 letter to DFAS; the 
16 April 1992 divorce decree; registered mail receipt from DFAS, dated 
8 November 1993; her letter to DFAS, dated 10 October 1993; the FSM's death certificate; a DD Form 2656-7 Verification for Survivor Annuity; and a letter from DFAS, dated 7 October 2008.

CONSIDERATION OF EVIDENCE:

1.  The deceased FSM enlisted in the Regular Army on 6 October 1955.  He and the applicant were married on 15 January 1960 and they were still married when 

the FSM retired in the rank of sergeant first class, due to physical disability, on 
22 June 1975.  

2.  At that time, the FSM signed a DA Form 4240 (Data for Payment of Retired Army Personnel) electing to provide for an SBP annuity based on the full amount of retired pay and named his spouse [the applicant], a stepson [now age 45], a daughter [now age 36] and another daughter [now age 43] as the beneficiaries.  An accompanying note, signed by a Medical Corps colonel, as the acting commander, explained that he had signed all administrative documents for the FSM, because the FSM could not physically sign and the spouse was not in the immediate area. 

3.  The FSM and the applicant divorced, on 16 April 1992.  The divorce decree required the FSM to designate the applicant the SBP beneficiary as the former spouse and to furnish her copies of all pertinent documents showing that he had done so.

4.  The documents submitted by the applicant show that, around October 1993, the applicant tried to make a deemed election. 

5.  The FSM's death certificate shows he died on 5 May 2008 and that he was divorced and had no current spouse. 

6.  A telephone call between a member to the staff and DFAS revealed that the SBP premiums had been paid, based upon the full amount of the FSM’s retired pay, up to the date of the FSM's death.  There is no designated beneficiary.  Approval of the applicant's request was recommended as a matter of equity.  The DFAS representative indicated that the amount would be calculated and direct deposit arrangements verified pending notification of the Board's action.

7.  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.  

8.  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.  

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


10.  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.

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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 entered into voluntarily by the member as part of a divorce settlement.

12.  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.  The applicant contends that in 1993 she advised DFAS that her divorce decree directed that the FSM name her as the “former spouse” beneficiary for the SBP annuity and she provided DFAS a copy of her divorce decree.  She also requested to be notified if any additional information was required.  She received no response and she trusted that everything was in order. 

2.  The applicant’s divorce decree required the FSM to designate the applicant as the SBP beneficiary by changing his election to "former spouse." 

3.  The SBP premiums were paid by the FSM until his death, and the FSM had no spouse at the time of his death.  

4.  Based on the available evidence it would be equitable to correct the FSM’s records to show he requested that his SBP coverage be changed to former spouse coverage in a timely manner and that the applicant be paid the SBP annuity retroactive to the day after 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:

   a.  showing the FSM made a written request to change his SBP coverage to former spouse coverage in a timely manner and that the request was received and processed by the appropriate office in a timely manner; and

   b.  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)                                         AR20080018916



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ABCMR Record of Proceedings (cont)                                         AR20080018916



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