IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100018866 


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 to be awarded Survivor Benefit Plan (SBP) benefits.

2.  The applicant states she was not aware the appropriate action necessary for her to receive an SBP annuity based on the death of her former husband, a former service member (FSM), had not been taken.  She claims to have been informed the necessary action had been taken at the time of her divorce from the FSM.

3.  The applicant provides the FSM's death certificate, divorce decree, attorney letter, and court order in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The record shows the applicant initially entered the U.S. Army Reserve (USAR) in an enlisted status on 10 July 1956 and served in the USAR or Army National Guard (ARNG) in an enlisted status until 23 February 1971 at which time he was honorably discharged.  He reentered service in an enlisted status on 7 July 1971 and served in that status until being honorably separated on 9 September 1984 to accept an appointment as a warrant officer on 10 February 1984.

3.  On 1 July 1972, the FSM and applicant were married.

4.  On 12 January 1988 while serving in the Indiana ARNG, the FSM received a Notification of Eligibility for Retired Pay at Age 60 from the State of Indiana Military Department.  This document confirms the FSM completed the required years of qualifying service to be eligible for retired pay at age 60.

5.  The record contains a partially legible DD Form 1883 (SBP Election Certificate) that shows the FSM elected spouse and children SBP coverage at the full amount under option C (Immediate Coverage).  The date this election form was completed and signed is not clear on the form.

6.  On 3 February 2003, the FSM and applicant were divorced.  The divorce decree was issued by Grant Superior Court Number 2, Grant County, State of Indiana.  This document orders a division of pensions be carried out by means of a qualified court order that provides for payment to the applicant for the remainder of her life the monthly sum of $650.00 during the life of the FSM, with that sum increasing to $1434.00 upon the death of the FSM.

7.  On 30 January 2004, the FSM was transferred to the Retired Reserve.

8.  On 16 February 2009, the FSM died.

9.  On 20 July 2009, a court order awarded the applicant interest in the military retired pay of the FSM.  The order was issued in Grant Superior Court Number 2, Grant County, State of Indiana.  This document awarded the applicant a survivor benefit in the military retirement of the FSM.  It indicated that in the event of the FSM's death, the applicant would be paid $717.00 per month or the maximum survivor benefit, whichever is the lesser.

10.  The Defense Finance and Accounting Service (DFAS) pay records pertaining to the FSM show that full spouse SBP coverage, with the applicant listed as spouse, was in effect at the time of his death.  DFAS was never informed of the divorce and the SBP election was never changed to former spouse coverage.  The pay record also confirms that SBP premiums continued to be paid through the date of the FSM's death.

11.  Title 10, U.S. Code, section 1448(b)(3), 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.  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 1 year of the date of the court order or filing involved.

12.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to an SBP annuity based on the FSM's death was carefully considered and found to have merit.

2.  By law, a deemed election by a former spouse can be made when SBP coverage is directed in a court order incident to a proceeding of divorce.  The divorce decree confirms payment to the applicant by the FSM and directs division of military retired pay and benefits be covered by a separate court-order.  Even though the court order authorizing survivor benefits was not published until after the FSM's death, it is clear that both the applicant and FSM believed the coverage continued for the applicant after their divorce.  This is evidenced by the fact the FSM continued to pay SBP premiums with the applicant listed as the FSM's beneficiary through the date of his death.

3.  Further, there is no evidence the FSM remarried, as evidenced by the fact no remarriage is documented in the DFAS record and he never modified his SBP election to name a new spouse as beneficiary prior to his death.  The lack of a named new spouse beneficiary for unpaid retired pay at the time of the FSM's death is evidenced by DFAS pay records.

4.  Based on the evidence of record, it appears the FSM clearly intended to continue to provide SBP coverage for the applicant as a former spouse.  Thus, it would be appropriate to correct the record to show the FSM changed his SBP election from spouse to former spouse on the date of his divorce from the applicant and to provide the applicant all SBP annuity payments due from the date of the FSM's death.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 showing the FSM changed his SBP election from spouse to former spouse on 3 February 2003, the date of his divorce from the applicant, and by providing the applicant all SBP annuity payments due from 16 February 2009, the date of 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)                                         AR20100018866



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ABCMR Record of Proceedings (cont)                                         AR20100018866



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