IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015534 


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, a former spouse of a deceased former service member (FSM), requests correction of the FSM's records to show her as the beneficiary of his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states that after submitting the appropriate documents, she received a phone call on 3 May 2010 from an official at the Defense Finance and Accounting Service (DFAS) - London, KY, to submit her application to this Board since there was no record of her late former husband's divorce or SBP form at DFAS.

3.  The applicant provides:

* her and the FSM's Marriage Certificate
* a Final Judgment of Change of Name, dated 14 November 2007
* a Final Judgment of Dissolution of Marriage, dated 6 December 1996
* a Final Judgment of Dissolution of Marriage, dated 3 October 1996
* a Certificate of Dissolution of Marriage, dated (issued) 7 May 2010
* the FSM's Certificate of Death, dated 2 February 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 23 September 1936 and initially entered active duty in the U.S. Air Force on 26 August 1955.

2.  The FSM's records also show he enlisted in the Regular Army on 27 July 1960 and he and the applicant were married on 7 October 1961.

3.  He served through multiple extensions or reenlistments, within and outside the continental United States, and he attained the rank/grade of master sergeant (MSG)/E-8.

4.  Prior to his retirement, he completed a DD Form 4240 (Data for Payment of Retired Army Personnel), dated 1 June 1976.  He indicated he was married to the applicant, and he elected not to enroll in the SBP.  His spouse, the applicant, concurred with his decision and she and a counselor authenticated this form by placing their signatures in the appropriate places. 

5.  On 31 August 1976, the FSM retired by reason of sufficient service for retirement and on 1 September 1976 he was transferred to the Retired List in his retired rank/grade of MSG/E-8.  He was credited with over 20 years and 9 days of total active service.

6.  DFAS records show the FSM enrolled in the SBP for spouse coverage during the 1993 Open Season.  SBP coverage began on 1 March 1993.

7.  On 3 October 1996, he and the applicant were divorced.  The final judgment of dissolution of marriage approved and incorporated and amended the marital settlement agreement that awarded the applicant the SBP.

8.  There is no indication the FSM informed DFAS of his divorce or that his former spouse made a deemed election to change SBP coverage from "spouse" to "former spouse" within 1 year of the date of the divorce.

9.  On 27 November 1996, the applicant remarried and on 8 March 2001, she was divorced.

10.  On 2 February 2010, the FSM died.  His death certificate listed him as divorced.

11.  DFAS records show the FSM continued to pay SBP premiums until his death.  He made 206 payments since his enrollment.  His last premium paid was at the rate of $196.99 for the month of January 2010.

12.  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.  Elections are made by category, not by name.
13.  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.

14.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

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 retiree had elected spouse coverage at retirement 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 evidence of record shows that when the FSM retired in 1976, he elected not to participate in the SBP.  However, he enrolled during the 1993 Open Season for spouse coverage.  He was still married to the applicant at the time.

2.  In 1996, the FSM and the applicant were divorced.  Their divorce decree obligated the FSM to change SBP coverage from "spouse" to "former spouse." He neither did so nor informed DFAS of his divorce.  Additionally, the applicant did not submit a deemed election within one year of their divorce.

3.  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 divorce.  He 

did not do so, and although there is no indication he remarried, he 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.

4.  Therefore, 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.  Additionally, the applicant should be paid the SBP annuity based on his death.

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" to "former spouse" within one year of their divorce in October 1996;

	b.  showing his request was timely received and processed by the appropriate DFAS office; and

	c.  paying the applicant 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)                                         AR20100015534



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ABCMR Record of Proceedings (cont)                                         AR20100015534



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