IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100001032 


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 spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with their divorce.

2.  The applicant states:

a. she did not know of the requirement to deem an election for the SBP;

b. she was not the FSM’s spouse at the time of his retirement and did not
receive the briefing that would have provided that information; and

c.  the FSM forwarded a copy of the divorce decree to the Defense Finance
and Accounting Service (DFAS) and terminated SBP coverage even though the decree stipulated she be maintained the beneficiary of his SBP.

3.  The applicant provides a copy of her divorce decree in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's was born on 11 March 1925.  He had prior active duty service in the United States Air Force (USAF).  On 15 October 1973, he enlisted in the U.S. Army Reserve (USAR).


2.  The FSM's Official Military Personnel File (OMPF) includes a 20-Year Letter, dated 22 December 1976.

3.  The FSM’s OMPF contains a DA Form 4240 (Data for Payment of Retired Army Personnel).  This document was completed in conjunction with the FSM’s 60th birthday and retirement on 11 March 1985 and it shows that he made an election to participate in the SBP for “spouse only coverage."  The spouse indicated on this form is not the applicant.

4.  On an unknown date, the FSM and the applicant were married.  The FSM’s OMPF does not include any evidence documenting a divorce from his first wife.

5.  The FSM’s DFAS record includes a letter authored by him dated 14 July 1998.  In it, he made a request to have his wife (the applicant) added to his SBP.

6.  On 6 November 2007, the Superior Court of Arizona Maricopa County, issued a Dissolution of Marriage.  The “Property Division” found on page 3 of this document provides that the applicant would remain as the beneficiary on the FSM’s SBP and that the FSM would pay all premiums on said plan.  It further stipulated that the FSM shall not remove the applicant as his primary beneficiary on his retirement plan pursuant to the payment of the SBP.

7.  The FSM’S DFAS record shows his SBP coverage was terminated on 6 November 2007.

8.  The FSM died on 18 August 2009.  His death certificate indicates he was divorced at the time of his death.

9.  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.

10.  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.  

11.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.
13.  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.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce a member with existing SBP coverage 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 one year of the date of a court order of divorce.  The FSM failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce and the applicant failed to make a request for a deemed election within one year of the divorce as required by law.

2.  The evidence of record confirms that the applicant and FSM were married subsequent to his retirement and thereby corroborates her claim that she was not provided any counseling regarding her requirement to submit a deemed election for SBP coverage within one year of divorcing the FSM.

3.  The evidence of record confirms the FSM initially elected SBP coverage for “spouse only” at the time of his retirement.  Subsequently, the FSM and the wife to whom he was married at that time were divorced and he married the applicant. The FSM and the applicant were divorced on 6 November 2007 and the terms of the divorce decree ordered that the FSM’s wife, the applicant, would remain the beneficiary on his SBP and he would maintain and pay all SBP premiums.

4.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  Although the applicant was not married to the FSM during his military career, he initially intended for her to be the beneficiary of his SBP, as evidenced by his election to enroll her by name in the SBP subsequent to their marriage.  Further, the applicant was awarded SBP in the divorce and there appears to be no one with a superior vested interested.  Therefore, in the interest of justice and equity, it would be appropriate to correct the FSM's record to comply with the divorce decree by providing SBP coverage for the applicant as a former spouse.

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:

   a.  showing the FSM changed his SBP spouse coverage to former spouse coverage on 6 November 2007, the date their divorce; and
   
   b.  paying to the applicant the SBP annuity due retroactive to 19 August 2009, 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)                                         AR20100001032





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)