IN THE CASE OF:
BOARD DATE: 3 May 2011
DOCKET NUMBER: AR20100019867
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 former spouse of a deceased retired former service member (FSM), requests that she be reinstated as the Survivor Benefit Plan (SBP) beneficiary.
2. The applicant states the divorce decree required him to pay the SBP premium and maintain her as the beneficiary. If he stopped it, he should not have.
3. The applicant provides a copy of the final divorce decree to support her request.
CONSIDERATION OF EVIDENCE:
1. The FSM retired as a sergeant first class in 1989.
2. The FSM and the applicant were married on 13 April 1974 and divorced on 26 August 1994. The divorce decree required the FSM to maintain the applicant as the SBP beneficiary and to have the premium deducted from his retired pay.
3. The applicant provided the FSM's death certificate by facsimile (FAX) on 16 April 2011. It shows he died on 24 March 2010.
4. The Defense Finance and Accounting Service advises "He had coverage when he retired. However, the SBP account went no benfy [sic] effective 08/27/1994."
5. 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.
6. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
7. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouses behalf provided the member agreed to provide coverage.
8. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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.
9. 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.
10. 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 intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case. The applicants court-directed entitlement to SBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.
2. By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election. The law also permits the former spouse concerned to request that a Former Spouse SBP coverage election be deemed to have been made within 1 year of the divorce.
3. The available evidence confirms the court directed the FSM to continue SBP protection for the applicant as part of their divorce. It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 1 year of the dissolution of his marriage to the applicant.
4. Had she been informed the FSM's SBP account had been changed to indicate that he had no beneficiary, the applicant could have made a deemed election, however, she did not because she was unaware of the situation.
5. An injustice has occurred in this case. It would now be appropriate to correct the injustice by showing the applicant requested a deemed election of the SBP under the terms of the divorce decree within 1 year of the divorce in 1994.
6. However, the FSM stopped paying SBP premiums in 1994. Back due costs will have to be paid before the annuity can be authorized.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 showing the applicant timely filed a deemed election to change the Survivor Benefit Plan election from full spouse coverage to full former spouse coverage, making the applicant the annuitant for the FSMs SBP.
2. The applicant is advised the Defense Finance and Accounting Service will be instructed to collect any SBP costs due. The applicant should be paid the
annuity retroactive to the day after the FSM's death, once back premiums have been paid up.
_______ _ 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) AR20100019867
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RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100019867
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