IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090001548 


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 of a deceased former service member (FSM), requests that she be provided an annuity under the FSM’s Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that the court, as part of her divorce, decreed that her former spouse was required to maintain her as beneficiary for payment of a survivor annuity upon his death.  She states that to the best of her knowledge she was never informed that she needed to submit a request for the annuity.

3.  The applicant notes that she is now 80 years old and believed that this annuity would be provided upon the death of her ex-spouse.  She states she would not have received a copy of her former spouse’s pay statement to be able to track payments when due.

4.  The applicant provides a copy of her marriage certificate, a copy of her divorce decree, a copy of the FSM's death certificate, and a copy of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant and the FSM were married on 24 February 1945.  The FSM entered military service as a Regular Army (RA) enlisted Soldier on 28 February 1947 and served continuously until his retirement for length of service on 31 May 1967.

2.  The FSM’s official military personnel file (OMPF) contains a DA Form 1041 (Election of Options Under Retired Serviceman’s Family Protection Plan) which he executed on 5 December 1966.  That form notes the FSM elected not to receive reduced retired pay in order to provide an annuity for his dependents.  On his March 1967 application for voluntary retirement, the FSM also indicated that he elected not to participate in the Retired Serviceman’s Family Protection Plan (RSFPP).

3.  Information obtained from the Defense Finance and Accounting System (DFAS) Retired and Annuity Pay Operations indicated that on 1 October 1973, during an open-season period, the FSM executed an SBP election for spouse-only coverage.

4.  On 26 June 1995 the applicant and the FSM were divorced.  The Judgment and Decree of Dissolution of Marriage issued in the Circuit Court of Pulaski County, Missouri, stated the "Plaintiff [the applicant] shall be maintained as beneficiary for payment of a survivor annuity to Plaintiff upon Defendant’s [FSM] death pursuant to Title 10, U.S. Code, section 1448…."

5.  According to information maintained at DFAS, on 26 June 1995, the same date the FSM’s divorce was finalized, SBP coverage was suspended.  DFAS also noted that premiums were no longer being paid and there was no deemed election for former spouse coverage on file.

6.  On 20 November 2008 the FSM died.  His death certificate lists the applicant as his spouse.  However, in subsequent correspondence to the Board the applicant noted that was an error although neither she nor her former spouse ever remarried.

7.  Public Law 83-239 enacted on 8 August 1953 established the Uniformed Services Contingency Option Act (USCOA).  Public Law 87-381 enacted on 4 October 1961 changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.

8.  Public Law 92-425 enacted on 21 September 1972 repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP.  A 12-month open season enrollment period was established for retired members.  Public Law 93-155 enacted on 16 November 1973 extended that open season from 12 to 18 months (21 September 1972-20 March 1974).  Premium deductions continued after the loss of a spouse until enactment of Public 
Law 94-496 effective 1 October 1976 which suspended spouse costs if the marriage ends in death or divorce.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

10.  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 1 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.

11.  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 1 year of the date of the court order or filing involved."

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates the FSM’s retired pay was reduced on a monthly basis commencing in October 1973 when he initially elected to provide for spouse-only coverage under the SBP.  Upon his divorce in 1995 the SBP was suspended in accordance with the provisions of Public Law 94-496 and premiums were no longer being paid.

2.  The divorce decree awarded the SBP to the applicant and specifically ordered the FSM to maintain the applicant’s designation as a former spouse SBP beneficiary.  Unfortunately, it appears the FSM did not take the action directed by the court, nor did the applicant make a request for a deemed election of the SBP.  As a result of the failure, premiums associated with the SBP were not paid between the 1995 date of divorce and 2008 when the FSM died.

3.  However, where the court has ordered former spouse coverage and there is no current spouse, as a matter of equity that it would be appropriate to correct the records in such a way as to provide for the SBP annuity to the former spouse.
4.  As such, it would be equitable to correct the records to show the applicant timely requested a deemed election as a former spouse.  However, since the premiums have not been paid, it would be appropriate to have those premiums paid out of the annuity or otherwise before payment is made to the applicant.

5.  The applicant should be granted the SBP benefit and DFAS should provide the applicant with the pertinent information relating to the outstanding premiums and any related benefits.

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 that the applicant made a request for a deemed election for the SPB as a former spouse within the required allotted time and that DFAS timely received and processed the request for a deemed election; and
   
   b.  showing that after appropriate arrangements have been made to pay the required premiums, paying the applicant the full SBP benefit from the date of 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)                                         AR20090001548



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ABCMR Record of Proceedings (cont)                                         AR20090001548



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