IN THE CASE OF:	

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090011108 


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 former spouse, a former service member (FSM), be corrected to show that he participated in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states, in effect, that she would like the Board to review her situation to see if she is entitled to her former husband's SBP.  She also states that she did not know what to do when her former husband passed away and she is still mourning his loss even though it has been more than two years since his death.

3.  The applicant provides, in support of her request, copies of the FSM's discharge document, Order and Amending Order Dividing Property, the FSM's death certificate, and three letters.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he had prior enlisted service in the U.S. Naval Reserve (USNR) beginning 13 August 1963, active duty service in the U.S. Navy from 2 March 1965 to 26 December 1966, and USNR service from 27 December 1966 until he was honorably discharged on 12 August 1969.

2.  The applicant enlisted and entered active duty in the Regular Army (RA) on
26 March 1974.  He and the applicant married on 20 August 1984.

3.  On 25 March 1992, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  Part V (Survivor Benefit Plan Election) of the form shows that he was married to the applicant, had one dependent child, and he requested full SBP coverage with spouse only coverage.  Part VI (Certification) of the DA Form 4240 shows that the applicant and a witness each affixed their signature on the document at Retirement Services, Fort Lewis, Washington.

4.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the RA on 31 May 1992 after serving honorably on active duty for a total of 20 years.  He was placed on the Retired List effective
1 June 1992.

5.  In support of her application, the applicant provides the following documents.

   a.  A Superior Court of Washington, Order Dividing Property and Liabilities, in the marriage of the applicant and FSM.  This document shows, in pertinent part, that with respect to the FSM's military retirement, the FSM was to receive a sum equal to 155/240th of the gross retirement proceeds received without any deductions, except the amount deducted from the FSM's retirement income for the applicant's SBP.  This document also shows that the FSM was to continue the applicant's survivor benefits on the military pension in full force and effect. [The court order the applicant provides is not signed or authenticated.]
   
   b.  A Superior Court of Washington, Stipulation and Order Amending Order Dividing Property and Liabilities, in the marriage of the applicant and FSM.  This document states, in pertinent part, "the [FSM] shall make a good faith effort to reinstate his survivor benefits awarded to the [applicant] previously under the Order Dividing Property and Liabilities, dated January 17, 1997, if at all feasible to do so."  This document also shows that Judge Heather K. V__ N___ issued the order on 27 October 2004 and the attorneys for the applicant and FSM signed the document.

	c.  Washington State Certificate of Death that shows, in pertinent part, the FSM died on 3 November 2007 and his marital status at the time of his death was listed as divorced.

	d.  Three letters from the applicant's attorney to the Defense Finance and Accounting Service (DFAS) (dated 10 December 2007, 8 July 2008, and             4 February 2009) that state the FSM passed away in late 2007 and the applicant believed the FSM may have let his spousal SBP lapse despite the fact that the FSM had been ordered in 1997 to "make a good faith effort to reinstate his survivor benefits."  The three letters request verification of the FSM's participation in the SBP and the applicant's entitlement to benefits.  The last two letters indicate DFAS did not respond to the applicant's attorney.

6.  In connection with the processing of this case, the General Processing Branch, DFAS, Cleveland, Ohio, was asked to verify information relevant to the FSM's SBP election, coverage, and participation.  DFAS verified that the FSM's SBP was suspended based on his divorce.  DFAS also provided a copy of a letter from the applicant's attorney, dated 24 November 1998, that confirmed the FSM and applicant had divorced on 17 January 1997 and that the purpose of the letter was to protect the applicant's right to SBP based on an Order Dividing Property and Liabilities.

7.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

8.  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.  Title 10, U.S. Code, Chapter 73, provides that a 
spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

9.  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.  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.  The applicant contends the FSM's participation in the SBP should be reviewed to determine if she is entitled to SBP payments.

2.  The evidence of record shows that, upon retirement from the Army, the FSM elected full SBP with spouse only coverage, named his spouse as his designated SBP beneficiary, and SBP premiums were deducted from the FSM's retired pay.

3.  By law, incident to a proceeding of divorce, a member 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 1 year of the date of a court order of divorce or filing involved.

4.  The evidence of record shows the applicant and FSM divorced on 17 January 1997.  The FSM's SBP was suspended based on divorce and the payment of SBP premiums was stopped.

   a.  There is no evidence that the FSM notified DFAS officials to change his SBP election to former spouse coverage within 1 year of the divorce.  In addition, the FSM's retired pay record maintained by the DFAS fails to show that the applicant made a "deemed election" within 1 year of the date of the court order or filing.

   b.  The evidence of record shows the applicant's attorney notified DFAS of the applicant's divorce from the FSM in an effort to protect her right to the FSM's SBP.  However, this notice was well after the one-year period of the divorce and did not satisfy the strict requirement for former spouse SBP entitlement by deemed election.

   c.  Thus, the evidence of record shows that neither the FSM nor the applicant (or the applicant's attorney) took the necessary action to change the FSM's SBP election from spouse to former spouse coverage within 1 year of the divorce.

   d.  Therefore, in view of the foregoing, the applicant is not entitled to SBP in this case.

5.  Despite the fact that neither the FSM nor the applicant took appropriate action to effect a change in the FSM's SBP election to former spouse within 1 year of the divorce, the Board concludes that the applicant's request merits favorable consideration.  Therefore, the FSM's records should be corrected to show that the applicant made a "deemed election" to change the FSM's SBP to former spouse coverage, effective 18 January 1997.  Thus, the applicant will be entitled to SBP based on former spouse coverage beginning 3 November 2007.

6.  As a result of this correction, the DFAS shall calculate the total amount of the FSM's SBP premium costs due based on former spouse coverage, full base amount, from the date the FSM's SBP was suspended to the date of his death.  The total amount of SBP premium costs due will then be deducted from the applicant's monthly SBP annuity beginning 3 November 2007 and continuing each month thereafter until such time as the total amount of the SBP premium costs is recovered, at which time the applicant will begin receiving a monthly SBP annuity.

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: 

	a.  all Department of the Army records of the individual concerned be corrected by showing the applicant made a "deemed election" to change the FSM's SBP category to former spouse coverage on 18 January 1997;

	b.  the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect all SBP premium costs due, effective from the date the FSM's SBP was suspended through the date before his date of death; and

	c.  the applicant be paid an annuity based upon the FSM’s participation in the SBP with former spouse coverage, full base amount, retroactive to 3 November 2007, the date of his 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)                                         AR20090011108



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ABCMR Record of Proceedings (cont)                                         AR20090011108



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