IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000247 


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, the former spouse of a deceased former service member (FSM), requests correction of his records to show he participated in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states the FSM made multiple requests, both verbal and written, to have her remain as his designated SBP beneficiary.

3.  The applicant provides copies of her birth certificate, marriage certificate, and divorce decree; the FSM's discharge document, retiree account statement, and letter to the Defense Finance and Accounting Service (DFAS); and the FSM's death certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Executrix of the FSM's estate, his daughter, requests that the records of her deceased father be corrected to show he participated in the SBP with former spouse coverage.

2.  The Executrix states the FSM entered the service on 10 October 1966 and retired on 8 August 1987.  She also provides a list of his awards and decorations.

   a.  She states the FSM notified DFAS in writing that he and the applicant were divorced and that his former spouse remains as the beneficiary of his SBP.  He also provided DFAS a copy of their divorce decree in support of his request.
   
   b.  She states that DFAS removed her mother's name as the designated SBP beneficiary and the FSM's pay account did not show a named beneficiary.  This was discovered in the summer of 2009.  She adds this is in direct conflict with the divorce decree and the FSM's letter to DFAS.

   c.  She states that, acting as the FSM's legal representative, she contacted DFAS by phone on three occasions to correct the error; however, her efforts were unsuccessful.

   d.  She states that in the last months of the FSM's life, she and the FSM (using a speakerphone) contacted DFAS to express his desire for his former spouse to remain his SBP beneficiary.  This effort was also unsuccessful.

   e.  She states that in September 2009, DFAS made a "special payment" to the FSM's checking account in the amount of $10,150.37 indicating the funds were based on an SBP credit.  She adds that the FSM did not request a refund and those funds remain untouched in the account.

   f.  She concludes by stating the FSM's records should be corrected to show that her mother (the former spouse) was designated as his SBP beneficiary and the wishes of the FSM should be honored.  She adds the "special payment" funds will be returned to DFAS upon correction of his records.

3.  The Executrix provides copies of a Letter of Testamentary, her German birth certificate, U.S. passport, and Georgia driver's license.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the FSM entered active duty on 10 August 1967 and he was honorably retired for length of service on 31 August 1987 in the rank/grade of lieutenant colonel (LTC)/O-5.  At the time he had completed 20 years and 21 days of net active service this period; 10 months of prior active service; and 20 years, 10 months, and 21 days of total active service.

2.  The FSM's military personnel file does not contain a DA Form 4240 (Data for Payment of Retired Army Personnel).

3.  In support of this application, the applicant and Executrix provide the following documents:

   a.  State of Mississippi, Standard Certificate of Birth, that shows the applicant was born on __ March 1935.
   b.  Federal Republic of Germany, Registration of Marriage, that shows the applicant and FSM were married on 11 March 1971.

   c.  Marital Settlement Agreement, dated 29 October 2003, that shows the applicant and FSM agreed that the applicant would receive a monthly sum of $1,400.00 per month from the FSM's disposable retired pay.  It also shows the FSM named the applicant as his SBP beneficiary at the time of his retirement.
It further shows that the FSM agreed, upon issuance of a final decree of divorce, to designate the applicant the SBP beneficiary under the former spouse designation and pay the expense for the SBP.

   d.  State of Georgia, Superior Court for the County of Clayton, Final Judgment and Decree, that shows the marriage between the applicant and FSM was dissolved on 23 February 2004.  This document also shows that the Marital Settlement Agreement between the applicant and FSM was made a part of this Final Judgment and Decree.

   e.  DFAS Retiree Account Statement, dated 1 May 2007, pertaining to the FSM's retired pay that shows his SBP coverage was "spouse only" with full base amount.  This document also shows the applicant's date of birth (DOB) is shown in the SBP Coverage section under "Spouse DOB."

	f.  A letter from the FSM to DFAS, dated 2 July 2007, in which he states he maintained his former spouse as his SBP beneficiary as required by the divorce decree that he enclosed with the letter.  He acknowledged that he had failed to change his marital status in his DFAS retired pay record.  He also requested that his record be changed to show his former spouse as his SBP beneficiary.

	g.  A State of Georgia, Certificate of Death, that shows the FSM died on
24 September 2009 and he was divorced at the time of his death.  The document also shows his daughter [the Executrix] was listed as the informant of the FSM's death.

4.  The General Processing Branch, DFAS, Cleveland, OH, was asked to verify information relevant to the FSM's SBP.  DFAS confirmed that the FSM did not inform DFAS of his divorce until July 2007, which was more than three years after the divorce.  He had one year from the date of his divorce to change his SBP beneficiary to former spouse.  Therefore, the former spouse is not eligible for SBP benefits.

5.  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.

6.  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:

   a.  if the service member voluntarily elects to provide a former spouse annuity;

   b.  the election is made in order to comply with a court order; or

   c.  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.

7.  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.

8.  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 and Executrix of the FSM's estate contend the FSM's records should be corrected to show he participated in the SBP with former spouse coverage because the final judgment of the divorce decree awarded the applicant the FSM's SBP as a former spouse and the FSM attempted to notify DFAS of this on several occasions.

2.  Records show that, upon retirement from the Army on 31 August 1987, the FSM elected SBP with spouse coverage.
3.  The applicant and FSM divorced on 23 February 2004.

   a.  The evidence of record indicates the FSM maintained SBP spouse coverage following his divorce from the applicant until DFAS terminated that coverage contrary to his wishes.

   b.  There is no evidence the FSM remarried after 23 February 2004.  In addition, records show the FSM was divorced at the time of his death.

   c.  The evidence of record indicates that in September 2009, DFAS made a "special payment" to the FSM's checking account in the amount of $10,150.37 indicating the funds were based on an SBP credit.

4.  DFAS confirmed that an SBP annuity has not been paid to the applicant because neither the FSM nor the applicant notified DFAS within 1 year from the date of their divorce to change the FSM's SBP beneficiary to former spouse.

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 the first time the FSM attempted to change his SBP beneficiary to former spouse was in July 2007.  As this was more than   1 year after the divorce, DFAS did not make the requested change.

   d.  Thus, 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.  It is logical to presume that if the FSM had intentions to disregard the court's order to continue SBP protection for his former spouse he would have discontinued premium payments.  However, the evidence of record shows the FSM did not do this.

7.  Despite the fact that neither the FSM nor the applicant took appropriate action to effect a change in the FSM's SBP election to former spouse within 1 year of the divorce, the applicant's request merits favorable consideration.  Therefore, the FSM's records should be corrected to show that the applicant made a "deemed election" to change the FSM's SBP to former spouse coverage, effective 24 February 2004.  Thus, the applicant will be entitled to SBP based on former spouse coverage beginning 24 September 2009.  

8.  In order for the applicant to receive the SBP annuity, the applicant and Executrix of the FSM's estate should be notified by DFAS of the total amount of SBP premiums due.  Then, upon receipt of the funds from the Executrix or an appropriate debit from the FSM's SBP account, DFAS should begin payment of the SBP monthly annuity to the applicant.

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 applicant made a request for a "deemed election" to change the FSM's SBP category to former spouse coverage on 24 February 2004;

	b.  advising the applicant that the Defense Finance and Accounting Service will be instructed to conduct an audit of all SBP premium costs due:

   (1)  effective from 1 September 1987 through 22 February 2004 based on 
spouse only coverage full base amount;
      (2)  effective from 23 February 2004 through the date of his death based on former spouse coverage; and

(3)  the applicant and Executrix be notified of the total SBP premium 
payment due; and

	c.  upon receipt of the funds from the Executrix or the appropriate debit from the FSM's SBP account by DFAS, the applicant be paid an annuity based upon the FSM's participation in the SBP with former spouse coverage, full base amount, retroactive to 24 September 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)                                         AR20100000247



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ABCMR Record of Proceedings (cont)                                         AR20100000247



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