IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090003460 


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 spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with their divorce.

2.  The applicant states, in effect, that in addition to the court order that directed she be made the irrevocable beneficiary of the FSM's SBP, it was always the FSM's intent that she receive it.  She also indicates the Social Security Administration declared her one hundred percent disabled due to her severe scoliosis condition, which rendered her unable to work.  She further indicates her financial situation and lack of income makes it a necessity for her to receive the SBP annuity to replace the alimony she received from the FSM prior to his death.

3.  The applicant provides, in support of her application, a self-authored statement, dated 20 January 2009; copies of the FSM's DD Forms 214 (Certificate of Release or Discharge from Active Duty); copies of Social Security Administration letters, dated 14 September 2003 and 20 January 2009; a Final Judgment of Dissolution of Marriage, dated 8 August 2007; a Full Mediation Agreement, dated 5 July 2007; the FSM's Florida Certificate of Death, dated 13 January 2009; and the FSM's DFAS-CL 7220/148 (Defense Finance and Accounting Service (DFAS) - Retiree Account Statement), dated
2 December 2008.




CONSIDERATION OF EVIDENCE:

1.  The FSM's military record shows that he had prior active duty service in the United States Air Force (USAF) and the United States Navy (USN).  The FSM and the applicant were married on 22 June 1976.  The FSM entered active duty as a member of the United States Army Reserve (USAR) on 21 February 1978.

2.  The FSM served on active duty until 30 June 1989, at which time he was honorably retired in the rank/grade of sergeant first class (SFC)/E-7 after completing a total of 20 years and 15 days of active military service.

3.  The FSM’s Official Military Personnel File (OMPF) contains a DA Form 4240 (Data for Payment of Retired Army Personnel).  This document was completed on 27 April 1989 and it shows that the FSM made an election to participate in the SBP for “spouse and children coverage."

4.  On 5 July 2007, the Circuit Court of the Second Judicial Circuit, in and for Leon County, FL issued a Full Mediation Agreement.  Paragraph 3 of pages       2 and 3 of this document confirm, in pertinent part, that the FSM agreed to continue to elect coverage under the SBP and designate his wife (applicant) as the sole beneficiary by electing the former spouse only option.  Both the applicant and the FSM authenticated this document with their signatures on 5 July 2007.

5.  On 8 August 2007, the Circuit Court of the Second Judicial Circuit, in and for Leon County Florida issued a Final Judgment of Dissolution of Marriage (divorce decree).  This document provided the approval for the Full Mediation Agreement.

6.  The FSM died on 4 January 2009.  His death certificate indicates he was divorced at the time of his death.

7.  The applicant provides a DFAS-CL 7220/148 which shows an SBP premium was deducted from the FSM's December 2008 retired pay.

8.  During the processing of this case, a staff member of the Board contacted DFAS to determine if a request was made to change the FSM’s initial election of SBP coverage from spouse to former spouse.  A DFAS official confirmed that the FSM's record contained no evidence of his divorce and that the applicant was still listed as the FSM's SBP beneficiary as his spouse. 

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.   

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

12.  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.

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.  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 with existing SBP coverage 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 required by law. 

2.  The evidence of record confirms the FSM initially elected SBP coverage for “spouse and children” at the time of his retirement.  Subsequently, the FSM and his the applicant were divorced on 8 August 2007.  Both parties agreed to comply with the terms of the Full Mediation Agreement, which included continued SBP coverage for the applicant as the former spouse and this was incorporated into the final divorce decree.  Premiums were still being deducted from the FSM’s retired pay for "spouse only" coverage through the date of his death on 4 January 2009 as evidenced by his 2 January 2009 Retiree Account Statement that documented his retired pay for December 2008.

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 more than 13 years of his
21 year military career.  The court ordered the FSM to make a former spouse election to maintain his initial election of SBP coverage for his Wife.  The FSM continued to pay SBP premiums subsequent to the date of his divorce through the time of his death and DFAS shows that the applicant is listed as the designated SBP beneficiary.  Therefore, in the interest of justice and equity, it would be appropriate to correct the FSM's record to comply with the divorce decree by providing SBP coverage for 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:

   a.  showing the FSM changed his SBP spouse coverage to former spouse coverage on 8 August 2007, the date their divorce; and
   
   b.  paying to the applicant the SBP annuity due retroactive to 4 January 2009, 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)                                         AR20090003460



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ABCMR Record of Proceedings (cont)                                         AR20090003460



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