IN THE CASE OF:
BOARD DATE: 08 April 2010
DOCKET NUMBER: AR20090015891
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 husband, a former service member (FM), be corrected to show she made a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP) within one year of their divorce.
2. The applicant states her divorce decree shows she was awarded SBP and the FSM was responsible to pay any premiums due. She was unaware the FSM had failed to submit the required form for former spouse coverage until she was notified of his death.
3. The applicant provides copies of her divorce decree and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. On 31 May 1989, the FSM was released from active duty and placed on the Retired List.
2. On 23 February 1989, the FSM had elected SBP spouse only coverage based on a reduced amount of $300. The applicant, his spouse at the time, acknowledged she had been informed and counseled concerning the options under the SBP. She concurred with the FSM's election on 23 February 1989.
3. On 2 February 1996, the applicant and the FSM were divorced. The Settle Agreement states, "The Wife shall be awarded her Survivor Benefit Plan. The Husband shall be responsible for and pay, as each installment becomes due."
4. There is no evidence the FSM made an SBP election for his former spouse within 1 year of their divorce. The applicant did not submit a request that an SBP election of former spouse coverage be deemed to have been made within 1 year of divorce.
5. On 18 July 2009, the FSM died. His death certificate states his marital status as divorced.
6. A telephone conversation with the Defense Finance and Accounting Service (DFAS) revealed the FSM did not change his SBP election to former spouse. However, DFAS stated the FSM continued to pay his SBP premiums up until his death.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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.
8. 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.
9. 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 one year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she should be allowed to make a deemed election for former spouse SBP benefits. She was unaware until after his death that the FSM had not changed his SBP election in accordance with the court order.
2. The FSM continued to pay SBP premiums up until his death, over 13 years after their divorce. His death certificate shows he was divorced at the time of his death and there is no evidence he remarried. Therefore, there is sufficient evidence to show he intended to provide SBP benefits to the applicant as required by the court.
3. Therefore, in the interest of justice, it is appropriate to correct the FSM's military records to show the applicant submitted a written request within 1 year of the date of divorce for a deemed election and that the election of former spouse coverage based on the reduced amount be deemed to have been made.
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 applicant submitted a timely written request that the election of former spouse coverage under the SBP based on the reduced base amount of the FSM's retired pay be deemed to have been made and that this request was timely received and processed by DFAS within 1 year of the date of their divorce, 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.
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