IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100019607 


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:

The applicant requests reinstatement of her benefits under the Survivor Benefit Plan (SBP) as a former spouse and reimbursement of monthly payments since December 2008.

2.  She states her SBP was erroneously discontinued in December 2008 due to the Department of Defense (DoD) misplacing and misunderstanding the conditions of their divorce.  The records need to be located or corrected to reflect that her late former spouse, a former service member (FSM), and her divorce settlement stipulated she was to receive upon his death all of his SBP benefits until her death.

3.  She also states she and the FSM were married for 30 years during which time he served on active duty for 23 years until he retired in 1990.  Unfortunately, they divorced in 1997.  As a condition of their divorce settlement it was stipulated that on his death she was to receive his SBP until her death.  This was something the FSM was in total agreement with.  The FSM died on 24 August 2008 and she began receiving SBP payments the next month and this continued until January 2009.  For reasons unknown to her the monthly payments ceased with the December 2008 payment.  She had been in contact with DoD since January 2009 attempting to determine why the monthly payments stopped in December 2008.  Her last letter to DoD, dated 10 June 2009, was answered on 3 June 2010.

4.  She provides:

* Waiver of Citation and Final Decree of Divorce, both dated 9 January 1997
* the FSM’s State of Texas Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 17 April 1967.  

2.  The FSM's military records show that with prior enlisted service, he was commissioned in the Regular Army on 29 June 1976.  He served continuously on active duty until he was honorably retired for length of service on 30 September 1990 in the rank of major (MAJ).  He apparently elected to participate in the SBP for spouse only coverage at that time.

3.  On 7 January 1997, the FSM submitted a waiver of citation to the District Court.  He and the applicant were granted a divorce on 9 January 1997.  The decree ordered the FSM to maintain SBP coverage for the applicant until her death.  

4.  There is no evidence that shows a deemed election was filed for the SBP within 1 year of the date of the Court Order.

5.  The FSM died on 24 August 2008.  His death certificate shows his marital status as "divorced."

6.  On 9 February 2011, a staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay, Cleveland, OH, verified that their office had received an application for annuity from the applicant, but they could not process the application because a former spouse SBP election was never deemed.  On 3 March 2011, the staff member further advised that their office did not have a copy of the FSM's original election on record and no SBP annuity had ever been paid.  DFAS also verified the FSM paid SBP spouse only premiums from the time of his retirement to the time of his death.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

8.  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.  
9.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

10. 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.

11.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.

2.  The evidence of record shows the FSM was retired on 30 September 1990.  He and the applicant were divorced on 9 January 1997.  The decree stipulated the FSM would maintain SBP coverage for the applicant until her death.  The FSM died on 24 August 2008.

3.  There is no evidence that the applicant submitted a request for a deemed election of former spouse coverage to DFAS within 1 year of divorce nor is there any evidence the FSM made a voluntary change from spouse to former spouse coverage.  However, DFAS verified the FSM paid SBP spouse only premiums from the time of his retirement to the time of his death and no one is currently receiving the annuity.  

4.  Considering the facts and circumstances of this case, and since there is no widow with a superior vested interest to defect the applicant's equitable interest, it would now be appropriate, as a matter of fairness and equity, to correct the FSM's records to show he requested an SBP change to former spouse coverage within 1 year of his divorce from the applicant.

5.  In view of the foregoing, the FSM’s records should be corrected as recommended below.
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 coverage from "spouse" to "former spouse" within one year of their divorce in February 1997;

	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)                                         AR20100019607



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ABCMR Record of Proceedings (cont)                                         AR20100019607



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