IN THE CASE OF:
BOARD DATE: 5 November 2009
DOCKET NUMBER: AR20090007800
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 record of her former husband, a former service member (FSM), be corrected to list her as the former spouse so that she may be deemed the Survivor Benefit Plan (SBP) beneficiary eligible for an SBP annuity as a result of his death.
2. The applicant states, in effect, that the FSM believed that he had signed her up for SBP coverage.
3. The applicant provides the following documents in support of her application: Commonwealth of Massachusetts, Trial Court Probate and Family Court, Department Judgment of Divorce; Commonwealth of Massachusetts Separation Agreement; DD Form 2618 (Supplemental Spouse/Former Spouse Election); Certificates of Marriage; Certificate of Death; and Voluntary Agreement.
CONSIDERATION OF EVIDENCE:
1. The FSM's record shows he served on active duty for 23 years and 17 days until being retired, in the rank of master sergeant (MSG), on 31 August 1984.
2. On 26 May 1963, the applicant and FSM were married.
3. On 18 June 1984, during his retirement processing, the FSM completed a
DA Form 4240 (Data for Payment of Retired Army Personnel). In this document, he elected a reduced amount Spouse Only SBP coverage with the applicant being named as the beneficiary as his then spouse.
4. On 7 July 1987, the applicant and FSM were divorced. The divorce decree and incorporated separation agreement provided no SBP coverage provisions for the applicant in conjunction with the divorce.
5. On 20 July 1987, the applicant suspended his SBP coverage and provided no voluntary former spouse SBP coverage election for the applicant.
6. On 6 August 1992, the FSM entered into a voluntary written agreement with the applicant, which stipulated that upon his death his former spouse (the applicant) would be paid an SBP annuity and on 7 August 1992, the FSM submitted a DD Form 2618 to the Defense Finance and Accounting Service (DFAS). This election was not accepted by or processed by DFAS given it exceeded the 1 year from the date of the divorce submission requirement of the governing law.
7. On 1 July 2008, the FSM died. The death certificate shows the FSM had remarried and had a spouse other than the applicant at the time of his death.
8. 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.
9. Public Law 94-496, enacted 14 October 1976, effective 1 October 1976, provided that members could suspend spousal cost if marriage ended in death or divorce. It also reduced the waiting period for new spouse's eligibility to 1 year following post-retirement marriage.
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 a community property in divorce cases if they so chose.
11. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse's behalf, provided the member agreed to provide the coverage. The member could also make a former spouse SBP election provided it was within one year of the divorce.
DISCUSSION AND CONCLUSIONS:
1. The applicants request for an SBP annuity as a former spouse based on the death of the FSM was carefully considered. However, there is insufficient evidence to support this claim.
2. By law, the FSM had 1 year to notify Army officials of his divorce and to make a voluntary former spouse SBP coverage election.
3. Further, the law requires SBP former spouse coverage be directed in the divorce decree and/or accompanying agreements in order for a former spouse to submit a deemed election, and even if coverage is dictated in the divorce degree, the law still requires the former spouse to submit a deemed election request within 1 year of the divorce.
4. In this case, the applicant and FSM were divorced on 7 July 1987, and former spouse SBP coverage was not dictated in the divorce degree or in the accompanying agreement. The FSM did not submit a voluntary election for former spouse coverage within 1 year of the divorce, as is required by law.
5. Finally, the FSM remarried prior his death, and his current spouse may be the eligible beneficiary for spouse coverage.
6. In view of the facts of this case, absent it being a requirement of the divorce degree, the applicant was not eligible for mandatory continued SBP coverage as a former spouse in conjunction with her divorce from the FSM. Since the FSM did not submit a voluntary election within 1 year of the divorce, and given he remarried prior to his death, regrettably, it would not be appropriate to provide the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x____ ___x_____ ____x____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ _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) AR20090007800
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ABCMR Record of Proceedings (cont) AR20090007800
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