IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100009242 


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 deceased former service member's (FSM) daughter [D____ P____], requests that her mother [D____ L. S____], be shown to be entitled to receipt of Survivor Benefit Plan (SBP) benefits as a former spouse.

2.  The applicant states although her father, the FSM, had divorced her mother, it was his intent that she receive SBP benefits upon his death.  The FSM had SBP premiums deducted from his retired pay for this purpose.

3.  The applicant provides the FSM's death certificate, the applicant's birth certificate, an application for unpaid compensation for D____ L. S____, a Defense Finance and Accounting Service Cleveland (DFAS-CL) 1741/122 (Information/Documentation Request), a DFAS SBP denial letter, an application for unpaid compensation, and a DFAS-CL 1741/70 (SBP Automatic Coverage Fact Sheet), dated 13 May 1999.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 17 November 1938.  He was a career Soldier who served honorably in both the Regular Army and later in Army National Guard from 30 October 1961 through his transfer to the Retired Reserve on 15 November 1995.




2.  On 13 April 1995, The Office of The Adjutant General, State of Indiana notified the FSM that he was entitled to receipt of retired pay at age 60.

3.  The Official Military Personnel File does not contain any evidence that shows the FSM completed an SBP election form at the time of retirement.

4.  The FSM reached age 60 on 17 November 1998.  On 8 December 1998, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated he elected to participate in the SBP for former spouse coverage, full base amount.  He listed D____ L. S____ as his former spouse.  He listed his marital status as single.

5.  The FSM passed away on 13 June 2008 at age 69.

6.  A DFAS-CL 1741/70, dated 13 May 1999, was provided by the applicant.  It shows an election of "spouse only" coverage.  It does list "former spouse" as a possible coverage.  It shows the spouse's Social Security Number as 313-XX-XXXX, her date of birth as 11 May 1936, and a date of marriage of 2 February 1962.  The FSM's last name is entered for both the first and last name of the spouse.  Other than the first name, the information provided on this form is consistent with other entries for D____ L. S_____ and her marriage to the FSM.  

7.  A DFAS-CL 1741/122, dated 8 September 1999, requested a copy of a marriage certificate for a "second wife."  The form has pen and ink notations indicating a divorce date of 12 November 1968 and a "remarriage" on 2 February 1962.

8.  The SBP denial letter from DFAS states that when the FSM divorced D____ L. S_____, in July 1977, he did not elect to provide former spouse coverage.

9.  DFAS also provided information that the FSM had paid SBP premiums for "spouse only" since he started receiving his retired pay.  A refund of premiums was paid to the FSM's son, S____ R. S____, when DFAS determined that the FSM did not have a spouse to receive SBP.

10.  DFAS has verified that no one is currently receiving the SBP annuity.  

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses' Protection Act ((USFSPA) relating to the SBP.  It permits a former service member 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 voluntary written agreement.

12.  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 that although her father had divorced her mother, it was his intent that she receive SBP benefits upon his death.  The FSM had SBP premiums deducted from his retired pay for this purpose.

2.  The DFAS-CL 1741/70 was completed well after the date of the FSM's divorce from D____ L. S____ and shows an election of "spouse only" coverage although there is no indication that there was a valid spouse at that time.  This version of the SBP election form does not have a space to denote coverage for a former spouse.  

3.  While the "spouse's" name is not correctly entered, the other information on the DFAS-CL 1741/70, identifying D____ L. S_____ as the person named, is consistent with the applicant's mother including the date of marriage to the FSM.

4.  The applicant paid the required SBP premiums for 9 years without any indication that he questioned the validity of the withholdings.  

5.  Since there is no block for former spouse coverage on the DFAS-CL 1741/70, and his DA Form 4240 definitely indicated he elected former spouse coverage for the applicant's mother, it is reasonable to presume that the election of "spouse only" indicates that the FSM intended to provide SBP coverage for his former wife at the time he became entitled to receive retired pay.  

6.  Therefore, it is appropriate to correct the FSM's record to show that he elected former spouse coverage at the time he applied for retired pay. 

7.  With the above correction, it is appropriate to show that D____ L. S_____ is entitled to receipt of SBP as of the date after the FSM's death, 13 June 2008.


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.  amending the FSM's record to show that he elected former spouse SBP coverage, full base amount, at the time he applied for retired pay and that his election was accepted and processed in a timely manner; and

	b.  showing that D____ L. S_____ is entitled to receipt of SBP as of the day after the FSM's death on 13 June 2008 minus any premiums that have to be repaid, if applicable.




      _______ _   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)                                         AR20100009242



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ABCMR Record of Proceedings (cont)                                         AR20100009242



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