IN THE CASE OF:	  

		BOARD DATE:	      25 AUGUST 2009

		DOCKET NUMBER:  AR20090003719 


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 the deceased former service member (FSM), requests, through her daughter, that she receive her deceased spouse's survivor benefit annuity. 

2.  The applicant's daughter states, in effect, that her parents were married for 35 years before they were divorced in 1985 and that her father, the FSM, never changed his survivor beneficiary on his military retirement pay accounts.  Near his death, the FSM told her that he had continued his survivor benefit premium payments and he truly believed since his former wife’s name was on his retirement statement, that she would receive his annuity.  The applicant's daughter does state that the FSM remarried in 1986, but this marriage ended with the death of her father's second spouse in 1992.  

3.  The applicant's daughter provides in support of her mother's application the following documents:  

   a.  General Power of Attorney, dated 10 November 2008; 
   
   b.  DD Form 214 (Report of Separation from the Armed Forces of the United States) with a separation date of 22 June 1954; 
   
   c.  Notice of Annuity Adjustment, dated 2 January 2007;
   
   d.  Certificate of Marriage, dated 13 October 1951; 
   
   e.  Divorce Decree, dated 17 December 1985; 
   
   f.  Retirement Order, dated 23 October 1991; 
   
   g.  Chronological Record of Military Service, dated 9 October 1991; 
   
   h.  Application for Retired Pay Benefits, dated 21 August 1991;
   
   i.  Mississippi National Guard Statement of Service, dated 22 August 1991; 
   
   j.  Survivor Benefit Plan Election Certificate, dated 1 September 19XX (poor quality copy); 
   
   k.  Death Certificate, dated 16 January 2008; and 
   
   l.  A letter from Defense Finance and Accounting System (DFAS), dated 18 September 2008; and personal statements.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 13 October 1951, the FSM and his first wife, the applicant, were married. 

3.  On 8 August 1952, the FSM was inducted into the Army of the United States and served with the 278th Infantry Regiment overseas.  On 22 June 1954, the FSM was honorably separated from active duty after serving 1 year, 10 months, and 15 days.  

4.  On 23 June 1954, the FSM transferred to the U.S. Army Reserve upon separation from active duty where he served two years until 22 June 1956.

5.  On 23 June 1956, the FSM enlisted in the Army National Guard and served until 9 March 1959 when he transferred to the U.S Army Reserve.

6.  On 10 March 1959, the FSM reenlisted in the Army National Guard serving continuously until his retirement.

7.  On 11 August 1977, the applicant's then husband received his notification letter from the National Guard Bureau stating he was eligible for retired pay at age 60 for he had completed 20 years of qualifying service for nonregular retirement.  

8.  On 1 September 1979, the FSM authenticated a DD Form 1883 (Survivor Benefit Plan Election Certificate) that shows he was married, that he elected spouse only coverage, that he elected to provide an annuity based on the full amount of his retired pay, and that he elected immediate coverage (Option C) for his named spouse "_______, Jo_____."     

9.  On 20 September 1982, the FSM was discharged from the Mississippi Army National Guard and was transferred to the U.S. Army Reserve Control Group in the rank and grade of sergeant first class/pay grade E-7.

10.  On 21 September 1982, the FSM retired from the Mississippi Army National Guard.  He was retired, promoted, and placed on the state retired list as a master sergeant/pay grade E-8 with his permanent rank as a sergeant first class/pay grade E-7.  

11.  On 17 December 1985, the FSM and the applicant were divorced in Neshoba County, Mississippi.  A review of the divorce degree does not show that the FSM agreed to provide survivor benefit plan (SBP) coverage for his former spouse upon his death.  According to the divorce decree, the FSM was directed by court order to provide $135.00 a month to his former spouse and $500 to pay her attorney's fees.  

12.  On 27 August 1991, the FSM's 60th birthday, he was retired from the U.S Army Reserve and placed on the U.S. Army Retired List in the grade of sergeant first class/pay grade E-7.  Permanent orders show that he was entitled to retired pay. 

13.  On 27 August 1991, DA Form 4240 (Data for Payment of Retired Army Personnel) shows that the FSM was married.  Item 9a (Beneficiaries for Unpaid Retired Pay) shows the entry "Sm_____, Jo______" as the FSM's named beneficiary for unpaid retired pay which was lined out with the FSM's initials.  

14.  On 2 January 2007, the FSM received a Notice of Annuity Adjustment from the Retirement Operations Center, U.S. Office of Personnel Management.  The notice shows that the FSM was paying a survivor annuity for "Jo________ F______."  

15.  On 9 January 2008, the FSM died.  The FSM's death certificate shows his marital status as widowed.

16.  On 18 September 2008, a Military Pay Technician within DFAS notified the applicant that for her to receive an SBP annuity from the FSM that benefit needed to be awarded to her in the divorce decree and that she had one year after her date of divorce to make a deemed election.  Since the divorce decree did not show that the former spouse was awarded the SBP, DFAS denied the applicant's request for an SBP annuity.  This letter shows that funds were withdrawn from the FSM's retirement pay account each month as an SBP annuity payment.  DFAS stated that the annuity payments would be refunded to the former spouse, as his named beneficiary for retired pay, in a pay out of Arrears Pay. 

17.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  The laws further provided that retiring members and spouses were to be informed of SBP options and effects and that premium deductions continued after loss of spouse.

18.  Public Law 94-496, (14 October 1976, but effective 1 October 1976) provided that spouse costs were to be suspended if a marriage ended in death or divorce.

19.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). An Open Season was established from 1 October 1978 – 30 September 1979; later extended to         31 March 1980.

20.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform 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 previously entered into voluntarily by the member or as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS: 

1.  Since SBP elections are made by category and not by name, the applicant ceased being the FSM's SBP beneficiary upon their divorce.  Without evidence that a former spouse election was made within a year of the divorce, the applicant is not entitled to SBP as a matter of law.  

2.  However, it is evident from the facts of this case that the FSM believed that the applicant remained his SBP beneficiary.  He elected her by name; he made her his beneficiary for unpaid retired pay; the FSM was informed that he was paying a survivor annuity for her; and he continued to pay SBP premiums after his second wife died.  

3.  Since there is no widow in this case and since the FSM continued to pay SBP premiums until his death, it would be in the interest of justice to now correct the FSM's records to show that he made a former spouse SBP election within a year of his divorce from the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  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 individual concerned made a former spouse SBP election within a year of his divorce from the applicant.




      _______ _   _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)                                         AR20090003719



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003719



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1