IN THE CASE OF:	

		BOARD DATE:	 17 December 2009 

		DOCKET NUMBER:  AR20090008244 


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, correction to the records of her deceased former spouse, a former service member (FSM), to show he elected Survivor Benefit Plan (SBP) former spouse coverage.

2.  The applicant states, in effect, it was the intention of her ex-husband to keep her as his SBP beneficiary because he never intended to abandon her.  The FSM always told her that she was his beneficiary.

3.  In support of her application, the applicant provides copies of the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 1992; a Certificate of Marriage, dated 4 August 1973; a Certified Translation of a Commonwealth of Puerto Rico, First Instance Court, Judgment of Divorce, dated 22 May 2003; the FSM’s Defense Finance and Accounting Service (DFAS)-CL 7220/148 (Retiree Account Statement), effective 2 December 2006, dated 2 January 2007; the FSM’s Certification of Death; an undated Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniform Services); a notarized affidavit from the applicant, dated 18 November 2008; a notarized Jury Declaration from the applicant's and FSM's son, dated 18 November 2008; a copy of the applicant's social security card; and a copy of the FSM’s United States Uniformed Services Identification Card in support of her application.




CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 26 January 1974, for 3 years.  He reenlisted on 24 January 1977.  He was honorably retired on 31 March 1992 by reason of length of service.

2.  The applicant submitted copies of a Certificate of Marriage and Divorce (Separation) Judgment that shows she and the FSM were married on 4 August 1973 and they were granted a divorce on 22 May 2003.  The court order does not show the FSM agreed to provide the applicant, as his former spouse, an annuity under the SBP commencing on the date of their divorce.

3.  There is no evidence the FSM submitted a request to change his SBP election from spouse to former spouse coverage as a result of their divorce.  

4.  The applicant also submitted a copy of the FSM’s DFAS-CL 7220/148, dated 2 January 2007, that shows “spouse only” SBP coverage was being deducted from his retired pay. 

5.  The FSM died on 22 August 2008.

6.  The applicant further submitted a copy of an SF 1174 that she completed after the FSM’s death.  The applicant listed herself and their son as the designated beneficiaries.  She also listed her relationship to the deceased as that of “ex-wife.”

7.  The applicant also submitted copies of a sworn affidavit by herself and a sworn Jury Declaration from their son.  In her affidavit, the applicant stated “Although after I was divorced from [the FSM], we kept seeing and taking care of each other until his death” and “I declare that he never abandoned me and it was his intention to keeping [sic] me as his SBP beneficiary at the time, even after we got divorced.”  In the son's sworn Jury Declaration, the son stated, “I acknowledge that my father was keeping [sic] paying the SBP even after his divorce because he had the intention that my mother (applicant name) was the beneficiary.”

8.  On 7 August 2009, an Army Liaison for DFAS, Retired Pay Branch, verified that the FSM did not have a DD Form 2656 (Data for Payment of Retired Personnel) or a DD Form 1883 (Survivor Benefit Plan Election Certificate) on file at DFAS-Retired Pay.  SBP premiums had been collected from 1 June 2003 through 30 July 2008, because DFAS-Retired Pay did not know the FSM was divorced on 23 May 2003.  As a result, the ex-spouse (the applicant) was paid an SBP credit of $5,011.40.

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 94-496, dated 14 October 1976, suspended spouse SBP costs if the marriage ended in death or divorce.  

11.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the FSM and the applicant married on 4 August 1973.  He was retired on 31 March 1992 for length of service.  Based on the FSM's DFAS-CL 7220/148 and DFAS-Retired Pay, it appears that the FSM elected to provide the applicant, his current spouse at the time, an SBP annuity.  The FSM and the applicant were divorced on 22 May 2003 and their divorce did not indicate continued coverage under the SBP as a former spouse.

2.  The FSM died on 22 August 2008.  The applicant and the FSM’s son claim that it was the FSM’s intention to provide the applicant with an SBP annuity after their divorce.  The evidence provided by the applicant and DFAS shows that SBP continued to be collected from the FSM’s retired pay from 1 June 2003 through 30 July 2008.  Therefore, it appears the FSM made a conscious decision to continue to provide an SBP annuity for the applicant and simply did not realize that he needed to change his election from spouse to former spouse in order to do so.

3.  Based on the foregoing and as a matter of equity in this case, it would be appropriate to honor the FSM’s intent by correcting his records to show that he voluntarily changed his SBP election from spouse to former spouse immediately after his divorce from the applicant.

4.  The applicant is advised that DFAS will collect any SBP premiums due (that appear to have been refunded to her).

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 FSM concerned be corrected by:

   a.  showing the FSM changed his SBP coverage from "spouse" coverage to "former spouse" coverage" within one year of their divorce in May 2003;

   b.  showing that the FSM's request was timely received and processed by DFAS; and

	c.  paying the applicant the SBP annuity as a result of the above correction, retroactive to the day following the FSM's death on 22 August 2008.



      _______ _   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)                                         AR20090008244



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ABCMR Record of Proceedings (cont)                                         AR20090008244



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