IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013140 


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 entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her deceased former husband, a former service member (FSM).

2.  The applicant states that her divorce decree indicated that she would be entitled to the SBP benefits and that officials at the Defense Finance and Accounting service (DFAS) do not have a copy of her statement requesting a deemed SBP election as a former spouse.  She also states that when she filed the document with her attorney, she understood that all necessary filings with DFAS would be completed but through no fault of hers, her prepared statement was not filed with DFAS.

3.  The applicant provides a copy of her letter to DFAS, dated 3 December 1997, requesting a deemed election; a copy of the FSM's death certificate; copies of an SBP information sheet; a copy of the FSM's retirement orders, dated 13 June 1996; a copy of her marriage certificate, dated 23 December 1975; and a copy of her divorce decree, dated 7 April 1997, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 26 October 1956 and married the applicant on 22 December 1975.

2.  The FSM's records also show he enlisted in the Regular Army on 31 May 1977.  He was trained in and held military occupational specialty 68P (Avionic Maintenance Supervisor), served through multiple reenlistments and/or extensions within and outside continental United States, and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 13 August 1996 and in anticipation of his upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) applying for retired pay.  He indicated that he was married to the applicant and had dependent children, and elected spouse SBP coverage based on the full amount.

4.  The FSM's records further show he was retired from active duty on 31 October 1996 and was placed on the Retired List on 1 November 1996.  He was credited with over 22 years of active military service.

5.  On 7 April 1997, the FSM and the applicant were divorced.  The Final Judgment and Decree of Total Divorce, issued by the Superior Court of Richmond County, GA, states that "at hearing, the husband agreed not to change the wife from her current designation as beneficiary under the joint and survivor election respecting said pension and he is ordered to make no change in said designation during the lifetime of the wife."

6.  There is no indication that the FSM changed his SBP coverage from "spouse" to "former spouse" coverage.

7.  The applicant submitted a copy of a letter, addressed to DFAS-Cleveland, dated 3 December 1997, in which she requested to deem the former spouse option for the SBP as authorized by the divorce decree.  However, there is no indication that DFAS received this letter.

8.  The FSM died on 5 May 2009.  His pay records indicate that he continued to pay SBP premiums until the date of death.  Additionally, there is no indication in his records that he remarried subsequent to his divorce from the applicant.

10.  Subsequent to the FSM's death, the applicant appears to have submitted paperwork to DFAS requesting entitlement to the SBP annuity.  However, DFAS officials indicated that there has not been an annuity established for the FSM.

11.  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.  Elections are made by category, not by name.

12.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members to include Reserve members.

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

14.  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 1 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.

15.  Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be entitled to SBP benefits based on the death of her deceased former husband.

2.  The evidence of record shows that prior to his retirement in 1996, the FSM elected full SBP spouse coverage.  Furthermore, she and the applicant were divorced on 7 April 1997 and their divorce decree stipulated that she would remain the designated beneficiary of his SBP.  There is no indication that the FSM submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.  However, the applicant submitted a copy of a letter addressed to DFAS on 3 December 1997, within 1 year of her divorce, requesting the SBP coverage be deemed to her as a former spouse.  Apparently, DFAS did not receive or did not properly process the request.

3.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  Nevertheless, the FSM was required to make a former spouse election as stipulated in the divorce decree within 1 year of the divorce.  He did not do so, but continued to pay SBP premiums until his death, which is indicative of the fact that he intended to comply with the terms of the divorce and provide an annuity for applicant's benefit.

4.  There is sufficient evidence to show that the FSM's intent was to change the SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected to show he did so and that his request was received and processed by DFAS in a timely manner.  Therefore, the applicant should be entitled to the 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 all Department of the Army records of the individual concerned be corrected by showing he changed his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce in April 1997, that his request was received by DFAS and processed by the appropriate office in a timely manner, and that the applicant be paid the SBP annuity retroactive to the day after 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)                                         AR20090013140



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ABCMR Record of Proceedings (cont)                                         AR20090013140



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