IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100001066 


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 that he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage at the time of their divorce and payment of the SBP annuity based on his death.

2.  The applicant states that she and the FSM were married for 31 years and spent over 20 years in the military as a family before they were divorced in 1986. Her court-ordered divorce assigned her as the beneficiary of his SBP.  

	a.  Upon his death in 2009, she filed for former spouse SBP but she was initially informed by Fort Eustis, VA, officials that the FSM did not pay SBP premiums.  She then requested help from the Defense Finance and Accounting Service (DFAS) and was informed that the FSM did in fact pay the premiums but did not change SBP coverage from "spouse" to "former spouse" coverage within one year of their divorce.  

	b.  She then submitted a copy of a letter wherein her former husband, the FSM, had submitted in writing requesting to designate her as the beneficiary.   Since she was divorced on 6 May 1986 and her former husband's letter requesting the change in designation was dated 20 August 1986, it was clearly within one year of the divorce.  Yet, DFAS still denied her because the change of designation letter submitted by the FSM was invalid since he submitted it prior to their divorce being final. 

3.  The applicant provides the following documents:

* A copy of a Stipulation Agreement, dated 6 May 1986
* A copy of the final divorce decree, dated 17 July 1987
* A copy of the FSM's death certificate, dated 16 October 2009
* A copy of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 January 1981
* A copy of her marriage license, dated 20 December 1985
* A copy of her birth certificate
* A copy of the FSM's letter, dated 11 August 1986
* A copy of DFAS letter, dated 5 January 2010
* A copy of her letter to DFAS, dated 11 January 2010
* A copy of DFAS response letter, dated 22 January 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 23 March 1934.  He and the applicant were married on 20 December 1955. 

2.  The FSM's records also show he was appointed as a commissioned officer and entered active duty on 25 June 1958.  He subsequently served in various command and staff positions within and outside the continental United States and was promoted to lieutenant colonel (LTC).

3.  On 22 January 1980, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated that he was married and had dependent children.  He further elected spouse only SBP coverage, based on a reduced portion of his retired pay in the amount of $500.00.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  

4.  His spouse, the applicant, did not sign the form; however, this form shows an entry that she was not available for counseling and had been informed by letter dated 22 January 1980 of her husband's election.  

5.  The FSM's records also show he was honorably retired on 31 January 1980 and transferred to the retired list in his retired rank of LTC on 1 February 1980.  He was credited with 21 years, 7 months, and 6 days of creditable active service.




6.  On 6 May 1986, the FSM and applicant entered into an agreement wherein the FSM agreed that he would irrevocably designate his wife, the applicant, as the beneficiary of his SBP and agreed to pay all the premiums required to maintain her as beneficiary and further agreed that he would not change the beneficiary. 

7.  On 11 August 1986, by letter to DFAS, Indianapolis, IN, the FSM stated that he and the applicant were going through divorce and he desired his wife at the time, the applicant, to continue as the beneficiary under the regulations for former spouse coverage.  He also stated that he desired for the current plan to remain in effect under former spouse provisions and that his request was a voluntary request.  He concluded that a notarized copy of his divorce decree would be sent as soon as received and indicated that if there was any other paperwork required, he would comply. 

8.  The FSM and applicant were ultimately divorced on 17 July 1987 and their 6 May 1986 agreement was incorporated into their divorce decree.  However, there is no indication he requested a change to SBP coverage subsequent to this final divorce or if his wife, the applicant, requested a deemed election.

9.  On 16 October 2009, the FSM died.  His certificate of death shows he was "widowed" at the time of death, indicating he had remarried after his divorce from the applicant and that his wife had died. 

10.  On 5 January 2010, by letter to the applicant, a DFAS military pay technician notified her that an annuity could not be established because the FSM had not changed his coverage to "former spouse" coverage.

11.  On 11 January 2010, by letter to DFAS, the applicant enclosed the letter that the FSM had sent to DFAS on 11 August 1986 and contended that he clearly designated her as the former spouse for the purpose of SBP coverage.

12.  On 22 January 2010, by letter to the applicant, a DFAS military pay technician notified her that although her divorce decree was submitted at the time, no one requested SBP coverage be changed to former spouse and that the letter that the FSM submitted on 11 August 1986 was not a valid request because it was submitted prior to the divorce being final.  The technician further informed her that the FSM never stopped making SBP payments and that payments continued until his death.

13.  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.
14.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

15.  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.

16.  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.

17.  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 the records of her deceased former spouse should be corrected to show that he changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree and she should be paid the SBP annuity based on his death. 

2.  The evidence of record shows prior to his retirement in 1980, the FSM elected SBP spouse coverage at a reduced amount.  

3.  Furthermore, in 1986, he and the applicant entered into an agreement wherein the FSM agreed that he would irrevocably designate his wife, the applicant, as the beneficiary of his SBP and agreed to pay all the premiums required to maintain her as beneficiary and further agreed that he would not change the beneficiary. 

4.  Subsequent to this agreement, but prior to actual divorce, the FSM submitted a letter to DFAS, voluntarily requesting the applicant continue as the beneficiary of his SBP as a former spouse.  However, since they were not divorced yet, he did not have a former spouse at the time and his letter was not a valid election.

5.  They were ultimately divorced on 17 July 1987 and their 6 May 1986 agreement was incorporated into their divorce decree.  However, although he continued premium payments, there is no indication that the FSM requested to change his SBP election from "spouse" to "former spouse" within one year of the divorce or that the applicant requested a deemed election within one year of their divorce. 

6.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  Nevertheless, the FSM was required to make a former spouse election as stipulated in their agreement and subsequent incorporation of this agreement into their final divorce decree.  He did not do so, but continued to pay SBP premiums until his death, which is indicative of the fact that he intended to comply with the terms of the divorce and provide an annuity for applicant's benefit.

7.  Although his death certificate indicates he was widowed at the time of death, there is sufficient evidence to show that the FSM's intent was to change the SBP coverage from "spouse" to former spouse" and, as such, his record should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.

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 he changed his SBP coverage from "spouse" coverage to "former spouse" coverage" within one year of their divorce in July 1987; 

	b.  his request was received by DFAS and processed by the appropriate office in a timely manner; and 

	c.  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.

ABCMR Record of Proceedings (cont)                                         AR20100001066



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ABCMR Record of Proceedings (cont)                                         AR20100001066



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