IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000166 


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

2.  The applicant states that based on the court-ordered division of property directed in their Judgment of Divorce, she was receiving a portion of the FSM's retired pay via a monthly direct deposit from the Defense Finance and Accounting Service (DFAS).

   a.  She states the FSM originally elected SBP with spouse only coverage, he was ordered to maintain SBP coverage for the applicant after their divorce, and he made SBP payments up until the time of his death.

   b.  She states she and the FSM were married 40 years before they were divorced, they lived together after the divorce, and she was not aware of the "deemed election" process.  She adds she learned of this requirement when she visited the Casualty Assistance Center at Fort McPherson, GA, after the FSM's death.

3.  The applicant provides copies of their marriage certificate, judgment of divorce, Internal Revenue Service (IRS) forms, and the FSM's death certificate.


CONSIDERATION OF EVIDENCE:

1.  The FSM had prior active duty and reserve enlisted service in the U.S. Navy from 4 May 1954 through 3 May 1962.

2.  The FSM enlisted in the U.S. Army Reserve (USAR) on 22 April 1974.

3.  On 20 November 1990, the U.S. Army Reserve Personnel Center, Retired Activities, St. Louis, MO, notified the FSM that his eligibility for retired pay had been established, upon attaining age 60.  He was also notified of his entitlement to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397.

4.  U.S. Army Reserve Personnel Command, St. Louis, MO, letter, dated
13 December 1991, shows the Chief, Retired Activities, confirmed that the
FSM's DD Form 1883 (Survivor Benefit Plan Election), dated 11 August 1991, was validated to provide SBP spouse only coverage based on the full amount of his retired pay and payable under Option C, immediate coverage.

5.  On 29 April 1994, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  Part V (Survivor Benefit Plan Election) shows that he was married to the applicant, had no dependent children, and he requested SBP coverage with spouse only coverage.  Part VII (SBP Certification) shows the FSM affixed his signature on the document.

6.  Headquarters, 77th U.S. Army Reserve Command, Fort Totten, Flushing, NY, Orders 39-67, dated 17 March 1994, reassigned the FSM to the USAR (Retired Reserve) effective 17 March 1994.

7.  U.S. Army Reserve Personnel Center, St. Louis, MO, Orders P-09-405060, dated 9 September 1994, retired the FSM and placed him on the Army of the United States retired list effective 12 December 1994.

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

   a.  The City of New York, Office of the City Clerk, New York State, Certificate of Marriage Registration, that shows she and the FSM were married on 21 June 1958.
   
   b.  Supreme Court of the State of New York, County of Queens, Judgment of Divorce, that shows the marriage between the applicant and FSM was dissolved on 22 January 1999.  This document also shows the Stipulation of Settlement entered into between the parties on 17 March 1997 was incorporated in this Judgment.  [A copy of the Stipulation of Settlement was not provided.]

   c.  Six IRS Forms 1099-R (Distributions From Pension, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.) for the years 2002 through 2005, 2007, and 2008.  These documents show the applicant received monetary distributions from DFAS based on [the FSM's] retired pay as a former spouse.

	d.  State of Georgia, Certificate of Death, that shows the FSM died on
3 October 2009 and he was divorced at the time of his death.  The document also shows the applicant was listed as the informant of the FSM's death.

9.  The General Processing Branch, DFAS, Cleveland, Ohio, was asked to verify information relevant to the FSM's SBP.  DFAS confirmed that an SBP annuity has not been paid to the applicant and that the FSM paid SBP spouse premiums until his death.

10.  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.

11.  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.

12.  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.
13.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), in pertinent part, states, a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the Plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected to show he participated in the SBP with former spouse coverage because the final judgment of their divorce settlement states she was awarded the FSM's SBP.

2.  Records show that, upon retirement from the Army, the FSM elected SBP with spouse coverage.  

3.  The applicant and FSM divorced on 22 January 1999.  The language of the divorce decree is not specific with regard to the FSM's SBP; it merely refers to the incorporation of a Stipulation of Settlement between the applicant and FSM, which is not in evidence.

   a.  Records show the applicant received a distribution from the FSM's retired pay based on her status of former spouse through [at least] 2008.

   b.  The evidence of record indicates the FSM maintained SBP spouse coverage following his divorce from the applicant and through his date of death.

   c.  There is no evidence the FSM remarried after 22 January 1999.  In addition, records show the FSM was divorced at the time of his death.

4.  DFAS confirmed that an SBP annuity has not been paid to the applicant.

5.  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.

   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.

   b.  There is no evidence the applicant made a "deemed election" within 1 year of the date of the court order or filing.

   c.  The evidence of record shows that the applicant learned of this error of omission when she visited the Casualty Assistance Center after the FSM's death.
   
   d.  Assuming the divorce required the FSM to maintain SBP coverage, the evidence of record shows that neither the FSM nor the applicant took the necessary action to change the FSM's SBP election from spouse to former spouse coverage within 1 year of the divorce.  However, the evidence also shows the FSM continued to make SBP payments for spouse coverage.

6.  Regardless of the terms of the divorce decree, it is logical to presume that the FSM intended to provide SBP protection for his former spouse otherwise he would have discontinued premium payments.  The evidence of record shows he did not do so.

7.  Despite the ambiguity regarding the terms of the divorce, the applicant's request merits favorable consideration on the basis of equity and the FSM's apparent intent should be honored.  Therefore, the FSM's records should be corrected to show that he voluntarily changed his SBP to former spouse coverage, effective 23 January 1999.  Thus, the applicant will be entitled to SBP based on former spouse coverage beginning 3 October 2009.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

____ ____  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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: 

	a.  showing the FSM voluntarily changed his SBP category to former spouse coverage on 23 January 1999; and


	b.  paying the applicant an annuity based upon the FSM's participation in the SBP with former spouse coverage, full base amount, retroactive to 3 October 2009, the date of his death.

2.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.



      _______ _   _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)                                         AR20100000166



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ABCMR Record of Proceedings (cont)                                         AR20100000166



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