IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001313 


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, the records of her former spouse, a former service member (FSM), be corrected to show her request for a deemed election of former spouse coverage under the Survivor Benefit Plan (SBP) was timely received and properly processed by officials at the Defense Finance and Accounting Service (DFAS).

2.  The applicant states that she was married to the FSM for 25 years, 18 of which were during his military service and that upon his retirement, he elected spouse coverage under the SBP.  She adds that she and the FSM were divorced on 29 August 2000 and that their divorce decree stipulated that she would continue to be designated as the beneficiary.  She further adds that she notified DFAS officials of the divorce and submitted a letter requesting a deemed election within one year of their divorce.  She also states that it was her former husband’s intent to comply with the court order and that he was unaware of the requirement to change his election from spouse to former spouse coverage.  He thought he only had to continue making premium payments, which he did, until he died on 19 September 2008.  She concludes that she has done everything she thought was required to start SBP benefits but was turned down by DFAS. 

3.  The applicant provides a copy of their final divorce decree, dated 29 August 2000; a copy of a letter making a deemed election to DFAS-Cleveland, OH, dated 18 July 2001; a copy of a letter, dated 3 April 2001, from DFAS-Cleveland; a copy of the FSM's certificate of death, dated 19 September 2008; a copy of a

DD Form 2656-7 (Verification for Survivor Annuity), dated 2 October 2008; a copy of her W-4P (Withholding Certificate for Pension or Annuity Payment), dated 2 October 2008; a copy of an FMS Form 2231 (Direct Deposit); a copy of a letter, dated 26 September 2008, from DFAS-Retired and Annuity Pay; and a copy of her marriage license, dated 10 April 1975 in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 16 February 1943 and entered military service on or about 10 January 1966.  His records also show that he and the applicant, J----- A. C---, were married on 10 April 1975.  

2.  On 29 December 1992, the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel) and indicated that he was married and had dependent children.  He further elected spouse only, full SBP coverage.  He and two other witnesses authenticated this form by placing their signatures in the appropriate blocks.  

3.  The FSM's records also show he was honorably released from active duty on 31 January 1993 and transferred to the retired list in his retired rank of colonel on 1 February 1993.  He was credited 27 years and 21 days of creditable active service.

4.  On 29 August 2000, the FSM and applicant were divorced.  The Divorce Decree awarded the applicant a portion of the FSM’s disposable retired pay.  It also ordered that the applicant would continue to be named beneficiary of the FSM’s SBP as long as she did not remarry.  Additionally, the divorce decree ordered both parties to recognize that this order would be tendered to DFAS within one year of the parties’ divorce to allow DFAS to honor the SBP provision.

5.  On 3 April 2001, by letter, DFAS-Cleveland notified the applicant that her application for payment of a portion of the FSM’s retired/retainer pay was received.  The letter further informed the applicant that if her divorce decree stipulated that she were to be designated as a former spouse beneficiary for the SBP, she was urged to make a deemed election for SBP coverage within one year of the date of divorce.  

6.  On 18 July 2001, by certified mail, the applicant notified DFAS-Cleveland that she was making a deemed election for SBP coverage and that her request was within one year of the date of her divorce. 


7.  On 19 September 2008, the FSM died.  His certificate of death shows he was married to “S----” at the time of his death. 

8.  The facts and circumstances surrounding the FSM's remarriage are not available for review with this case.

9.  On 26 September 2008, by letter, a military pay technician at the DFAS Retired and Annuity Pay office notified the applicant that in closing the FSM's pay account, it was determined that charges for the SBP benefits were being deducted from his retired pay until the time of his death.  Additionally, his records show that he was not married at the time of death.  The DFAS official further instructed the applicant to furnish DFAS with a copy of her marriage certificate, divorce decree, and/or death certificate of the FSM, so that a refund of costs for the SBP could be included with the arrears payment due her and any other beneficiaries.  

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, 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.

13.  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 the records of her former spouse should be corrected to show that her request for a deemed election of former spouse coverage under the SBP was timely received and properly processed by officials at DFAS.

2.  The evidence of record shows that prior to his retirement in 1993, the FSM elected full SBP spouse coverage.  Furthermore, he and the applicant were divorced on 29 August 2000.  The divorce decree stipulated that the applicant would continue to be the beneficiary under the SBP and, although there is no indication that the FSM submitted the necessary forms to change his SBP election from “spouse” to “former spouse” within one year of the divorce, the applicant did in fact submit a deemed election with one year of the divorce.  

3.  It appears that the FSM remarried at a later date as evidenced by the name of the spouse on his death certificate; however, the date of his remarriage cannot be determined.  Regardless of the date of any subsequent marriage and because the applicant made a timely deemed election, there was no SBP interest to vest in a new spouse.

4.  There is sufficient evidence to show that the applicant made a timely request for a deemed election.  Therefore, it would be equitable to correct the FSM's records to show that her request for a deemed election was received and processed by DFAS and that she is entitled to a former spouse annuity.

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 applicant made a timely request for a deemed election to change the FSM's SBP coverage from spouse to former spouse coverage within one year of the divorce;
   
   b.  showing that her request was received and processed by the appropriate office in a timely manner; and
   
   c.  that DFAS pay the applicant the SBP annuity as a result of the above correction, retroactive to the day following the FSM's death on 19 September 2008.



      _________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)                                         AR20090001313



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ABCMR Record of Proceedings (cont)                                         AR20090001313



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