IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090011780 


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 that the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage election from spouse to former spouse in conjunction with their 13 June 1983 divorce and that she be provided the resulting SBP annuity due.

2.  The applicant states, in effect, the FSM elected spouse-only SBP coverage at the time of his retirement in 1978 and named her as the beneficiary.  She further states that she and the FSM were divorced in 1983; however, they remained close and neither remarried.  She further states the FSM was unaware he had to change the SBP coverage election to former spouse when they divorced, but believed she remained covered, as evidenced by the fact he continued to pay premiums through the date of his death.

3.  The applicant provides the FSM's death certificate, their marriage certificate, their divorce decree, and the FSM's Defense Finance and Accounting Service Retiree Account Statement, dated 22 August 2003, in support of the application.

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.  The FSM's record shows he initially entered active duty on 22 September 1948 and that he was honorably retired on 30 September 1978.  At the time, he held the rank of command sergeant major/E-9 and had completed a total of 30 years and 9 days of active military service.

3.  The FSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel) which he completed on 29 August 1978 during his retirement processing.  In this form, the FSM elected spouse-only coverage at the reduced amount of $500.00.  The applicant's name was listed as the spouse in item 17 (Name of Spouse) of the form.

4.  On 13 June 1983, the applicant and FSM were divorced and the FSM died on 15 September 2003.

5.  The applicant provides the FSM's Retiree Account Statement, dated 22 August 2003.  The SBP section shows the FSM had spouse-only coverage and was paying an $81.61 premium for an annuity base amount of $1,272.54, which provided for a 55-percent annuity amount of $699.90.  The spouse date of birth listed was 4 September 1930, which is the date of birth of the applicant listed on the DA Form 4240 on file.

6.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act relating to SBP.  It permits a person who is required by court order to elect to provide an annuity to a former spouse incident to a proceeding of divorce 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 1 year of the date of the court order or filing involved.

7.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse, who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.  There is no provisions allowing the former spouse to request a deemed election when SBP is not court-ordered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of eligibility to an SBP annuity based on the FSM's death was carefully considered and found to have merit.

2.  By law, former spouse SBP elections must be made within 1 year of a divorce.  The evidence in this case shows the FSM elected coverage for the applicant as his spouse upon his retirement in 1978 and did not remarry after his 13 June 1983 divorce from the applicant.

3.  The evidence fails to show the FSM took action to suspend his SBP coverage subsequent to the divorce; however, it does confirm he continued to pay the SBP premium through the date of his death.  Further, the SBP coverage section of the FSM's last Retiree Account Statement lists the applicant's date of birth as the covered spouse's date of birth.

4.  In view of the facts of this case, it would be appropriate to correct the record to show that the FSM changed his SBP election from spouse to former spouse on the date of his divorce from the applicant and to provide the applicant all SBP annuity payments due from the date of the FSM's death as a matter of equity.

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 showing the FSM changed his SBP election from spouse to former spouse on 13 June 1983, the date of his divorce from the applicant, and by providing the applicant all SBP annuity payments due from 15 September 2003, 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)                                         AR20090011780



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ABCMR Record of Proceedings (cont)                                         AR20090011780



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