IN THE CASE OF:	  

		BOARD DATE:	    4 May 2010

		DOCKET NUMBER:  AR20090017490 


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 spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for former spouse coverage subsequent to their divorce.

2.  The applicant states the following:

	a.  A previous request for SBP coverage was denied because the FSM did not submit a request for former spouse coverage within 1 year of their divorce.

	b.  The FSM had Parkinson's disease and dementia making him unaware or causing him to forget his need to complete a new form to elect former spouse SBP coverage.

	c.  The FSM continued to pay SBP premiums with the intent that she would receive the SBP annuity upon his death.

	d.  The SBP annuity was to be used to pay for the FSM's nursing home costs because all of their finances were depleted during his nursing home residency from November 2006 through December 2008.

	e.  The FSM and she nearly lost their home.

	f.  She only receives social security and has no other income.
	g.  She should be paid the SBP annuity the FSM earned during his military service.

	h.  She is the FSM's former spouse in name only.

	i.  She was the FSM's power of attorney and had she known to make an election for former spouse SBP coverage, she would have.

	j.  In May 2007, she informed the Defense Eligibility Enrollment Reporting System of her divorce and was informed that nothing would change unless she remarried.

3.  The applicant provides the following documents in support of her request:

* Virtua Health and Rehabilitation Center at Berlin billing statements
* self-authored statement
* death certificate
* marriage certificate
* final judgment of divorce
* Defense Finance and Accounting Service (DFAS) retiree account statements
* DD Form 1883 (Survivor Benefit Plan Election Certificate) with FSM's and applicant's statements
* DFAS retired/annuitant pay statement

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was born on 29 January 1934.

2.  The FSM and applicant were married on 20 September 1981.

3.  The FSM was finally discharged from the New Jersey Army National Guard on 25 January 1994 after completing 23 years and 22 days of military service.

4.  On 8 January 1994, the FSM completed a DD Form 1883 in which he elected full "spouse only" SBP coverage under option B (age 60).  The applicant was named as his spouse in item 10 (Name of Spouse) of the form.

5.  On 17 May 2007, the FSM and applicant were divorced in the Superior Court of New Jersey.  The divorce decree indicated the FSM and applicant waived any claim of alimony against the other party and their income would permit them both to live at a standard of living reasonably comparable to that established during the course of their marriage.

6.  The record is void of any change of SBP election made by the FSM subsequent to his 2007 divorce from the applicant.

7.  On 23 December 2008, the FSM died at the age of 64.

8.  The applicant provides three retiree account statements which confirm SBP premiums for "spouse only" coverage were deducted from the FSM's retired pay through January 2009, the month preceding his death.

9.  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.

10.  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 provision allowing the former spouse to request a deemed election when SBP is not court-ordered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention she should receive an SBP annuity based on the death of the FSM was carefully considered and found to have merit.

2.  The evidence shows the FSM elected SBP coverage for the applicant as his spouse upon his retirement in 1994.  However, it fails to show he elected to cover her as a former spouse after their 2007 divorce and the divorce decree did not address SBP coverage.  Although SBP coverage was not ordered in the divorce decree, thus eliminating the ability of the applicant to request a deemed election, the FSM could have voluntarily elected to change his election from spouse to former spouse coverage when they divorced.

3.  However, DFAS records confirm the FSM continued to pay SBP premiums until his death.  The divorce of the applicant and FSM seems to have been necessitated by financial hardship based on the FSM living in a nursing home due to his illnesses.  The applicant remained committed to the FSM's care and, for all practical purposes, the applicant remained his wife in all but name.

4.  The evidence in this case further presents an elderly couple in failing health doing the best they knew how to avoid losing their home and leaving the survivor to suffer financial ruin.  The applicant clearly remained very much engaged in her former husband's life.  Therefore, as a matter of equity and compassion, it would be appropriate to correct the FSM's record to show he elected former spouse SBP coverage at the time of his divorce, with the applicant as the authorized beneficiary, and to provide the applicant the SBP annuity due from the date of the FSM's death.

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 spouse SBP coverage to former spouse coverage on 17 May 2007, the date of their divorce, and by providing the applicant the SBP annuity due from 23 December 2008, 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)                                         AR20090017490



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ABCMR Record of Proceedings (cont)                                         AR20090017490



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