IN THE CASE OF:
BOARD DATE: 9 August 2011
DOCKET NUMBER: AR20100025842
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 correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.
2. The applicant states she was awarded SBP coverage in her divorce decree and a copy of the divorce decree was sent to the Defense Finance and Accounting Service (DFAS). They were never told they had to submit any other paperwork to the retirement office to change her former spouse's SBP election from spouse to former spouse coverage. She further states that 2 months after the divorce she and the FSM resumed living together until his death.
3. The applicant provides a 16-page copy of a Circuit Court of Madison County, Alabama, divorce judgment, dated 15 August 2008; an Alabama Certificate of Death, dated 19 August 2010; a DFAS Retiree Account Statement effective 17 September 2009; and an Internal Revenue Service Form 1099-R (Distributions from Pensions, Annuities, Retirement, or Profit-Sharing Plans, Individual Retirement Accounts, Insurance Contracts, etc.).
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 9 July 1980. He and the applicant married on 28 July 1984.
2. The FSM retired on 30 November 2000. At the time of the retirement, the FSM opted to enroll in the SBP for spouse coverage.
3. On 15 August 2008, the applicant divorced the FSM. The divorce judgment stated the applicant would be the beneficiary of the FSM's SBP, to wit: "The Wife shall be beneficiary of the Husband's SBP as set forth below: The Wife is awarded as further property settlement 50 percent of the maximum former spouse survivor annuity to the Husband's retirement benefits."
4. There is no evidence that shows the FSM submitted a written request to DFAS to change the SBP coverage from spouse to former spouse or that the applicant submitted a written request for a deemed election to DFAS to change the SBP coverage from spouse to former spouse within 1 year of their divorce.
5. On 3 August 2010, the FSM died. His death certificate shows his marital status as divorced.
6. On 26 July 2011, DFAS confirmed the FSM paid for SBP spouse coverage until his death and no one is receiving the annuity.
7. 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.
8. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
9. 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 member was participating in SBP or was still on active duty and had not yet made an SBP election.
10. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed 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 1 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:
It appears neither the FSM nor the applicant requested the SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory 1-year time limit from the day of their divorce. However, the FSM continued to pay premiums after his divorce until his death and no one is currently receiving the annuity. It appears it was always his intention to comply with the court's order. It would be equitable to correct the FSM's records to show he requested to change his SBP coverage to former spouse coverage in a timely manner.
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:
a. showing the FSM made a written request to change his SBP coverage to former spouse coverage on 17 August 2008;
b. showing the FSM's request was received and processed by the appropriate officials in a timely manner; and
c. paying the applicant the SBP annuity based on the above correction effective 4 August 2010, 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) AR20100025842
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100025842
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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