BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100012119 


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 Survivor Benefit Plan (SBP) annuity election made by her deceased ex-spouse, a former service member (FSM), be changed to former spouse coverage and that she be provided an SBP annuity accordingly.

2.  The applicant states:

* the FSM’s SBP election was in effect on the date of divorce
* the FSM intended she be maintained the beneficiary of his SBP as stated Exhibit A of the divorce decree
* the FSM was not aware of his requirement to confirm his SBP election of coverage subsequent to their divorce

3.  The applicant provides the following:

* Certificate of Death
* Pierce County, Washington Findings of Fact and Conclusions of Law (Divorce Decree)
* self-authored statement

CONSIDERATION OF EVIDENCE:

1.  The FSM last enlisted in the United States Army on 8 September 1969 and continuously served on active duty until he was honorably released from active duty (REFRAD) for the purpose of retirement on 30 June 1996.  At the time, he had completed a total of 21 years, 9 months, and 15 days of active military service.

2.  The FSM and applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 8 June 1990.  It shows that the FSM made an election to participate in the SBP for “spouse and children” coverage, at the reduced base amount of $349.00.

3.  The FSM and the applicant were married on 28 March 1981, and were divorced on 15 May 2008.

4.  On 4 April 2008, the Superior Court of the State of Washington in and for the County of Pierce issued a Division of Property (Exhibit A) and Division of Debts and Liabilities (Exhibit B).  Exhibit A, paragraph 4 of Page 1 includes the statement “Both parties are to continue payment into the Survivor Benefit Plan annuity for the benefit of the other spouse.”  Both the applicant and the FSM authenticated the “Verification by Petitioner/Respondent portion of this document with their signatures.

5.  On 15 May 2008, the Superior Court of the State of Washington in and for the County of Pierce issued a Findings of Fact and Conclusions of Law (FNFCL).  Page 2, paragraph 2.6 of this document provides that the marriage is irretrievably broken.

6.  On 4 February 2010, the FSM died.  His death certificate lists his marital status as “divorced.”

7.  During the processing of this case, a staff member of the Board contacted DFAS to determine if a request was made to change the FSM’s initial election of SBP coverage from spouse to former spouse.  A DFAS official confirmed their office received an unofficial notice of the FSM’s divorce and SBP premiums continued until they were terminated in July 2010.

8.  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.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).  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.

9.  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 the FSM initially elected SBP coverage for “spouse and children” with a reduced base amount at the time of his retirement.  The FSM and his former spouse (the applicant) were divorced on 15 May 2008.  Both parties agreed to comply with the terms of the Division of Property, which included continued SBP coverage for the applicant as the former spouse and this was incorporated into the divorce decree.

3.  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 entire military service, she was married to the FSM for more than 11 years of his military career and an additional 17 years after his military career.  Subsequent to their divorce on 15 May 2008, SBP premiums were continually made through July 2010, approximately 5 months after the FSM’s death on 4 February 2010, which supports the applicant’s claim that it was the FSM’s intent that she remain the beneficiary of his SBP.  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 showing he elected former spouse SBP coverage in conjunction with his divorce from the applicant.  Furthermore, all SBP premiums paid after the FSM's death should be refunded.

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 at the reduced base amount on 15 May 2008, the date their divorce;
   
   b.  paying to the applicant the SBP annuity due retroactive to 5 February 2010, the day after the FSM's death; and
   
   c.  refunding all SBP premium payments made 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)                                         AR20100012119





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012119



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1