BOARD DATE: 21 April 2011
DOCKET NUMBER: AR20100024561
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 the records of her deceased ex-husband, a former service member (FSM), be corrected to show she is entitled to former spouse coverage under the Survivor Benefit Plan (SBP).
2. The applicant states if her ex-husband has paid SBP premiums with the understanding she would receive an SBP annuity, she believes she should receive the annuity payments.
3. The applicant provides:
* the FSM's DD Form 214 (Report of Separation from Active Duty)
* the FSM's Last Will and Testament, dated 4 April 1969
* Divorce Complaint, dated 1 May 1991
* Divorce Decree, dated 28 June 1991 (middle name incorrect)
* a letter, dated 16 April 1992, to the applicant from the FSM
* the FSM's Death Certificate
* the applicant's DD Form 2656-7 (Verification for Survivor Annuity)
* a letter, dated 7 April 2010, to the applicant from the Defense Finance and Accounting Service (DFAS)
* a letter, dated 14 June 2010, to the applicant's Congressional Representative from DFAS
CONSIDERATION OF EVIDENCE:
1. On 4 May 1978, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He elected to enroll in the SBP with spouse and children coverage based on the reduced amount of $300.
2. On 30 September 1978, the FSM was retired and placed on the Retired List the following day. He completed 20 years, 1 month, and 3 days of active service.
3. On 1 May 1991, the applicant and the FSM were divorced. The divorce decree does not mention or address benefits under the SBP.
4. An email from DFAS indicates the FSM had no SBP beneficiary effective
29 June 1991. There were no SBP premiums being deducted from his retired pay from 29 June 1991 until the date of his death.
5. The FSM died on 6 February 2010. His death certificate states he was divorced at the time of death.
6. The applicant submitted the FSM's Last Will and Testament, dated 4 April 1969. This document does not mention or any benefits under the SBP.
7. The applicant submitted a letter, dated 16 April 1992, she states was written by the FSM. In the letter, the FSM stated she was still entitled to receive his SBP even if she was re-married. The FSM also stated he did not mind paying the SBP premium if she would actually receive some benefit.
8. Public Law 92-425, the SBP, enacted 21 September 1972, 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. The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity.
9. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 or 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 email from DFAS shows the FSM did not change his SBP coverage to provide for former spouse coverage. Though he may have intended at one time to provide the applicant an annuity, the FSM took no action to change his SBP election. In the over 18 years between their divorce and his death the FSM did not pay any SBP premiums.
2. In order for a former spouse to make a deemed election, the SBP annuity must be awarded incident to a proceeding of divorce and the deemed election must have been made within one year of divorce. The applicant's divorce decree does not specifically award an SBP annuity to the applicant. The divorce decree does not direct the applicant's ex-husband to provide SBP benefits for his former spouse. Therefore, the applicant is not entitled to make a deemed election for SBP benefits.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x_____ ___x___ ___x_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
_______ _ 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) AR20100024561
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ABCMR Record of Proceedings (cont) AR20100024561
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