IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026585 


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 that the records of her deceased former spouse, a former service member (FSM), be corrected to show he participated in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states that the FSM told her after their divorce he kept her as the beneficiary of his SBP.  After the FSM passed away, she inquired into the SBP annuity and was informed that the FSM had not changed the beneficiary designation from spouse to former spouse; however, he continued to have SBP premiums deducted from his retired pay.

   a.  She states the FSM did not change the beneficiary designation because he hoped they would get back together.  She adds that the FSM told this to a 
co-worker on several occasions.

   b.  She concludes by stating the FSM intended for her to receive the SBP annuity even though he did not make the proper changes.

3.  The applicant provides copies of their Original Petition for Divorce, Final Decree of Divorce, the FSM's death certificate, and a General Affidavit.






CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he had prior honorable active enlisted service in the U.S. Army from 10 June 1976 through 22 June 1980.

2.  The FSM enlisted in the U.S. Army Reserve as a cadet on 6 October 1981. He was appointed as a Reserve commissioned officer on 30 April 1983 and was ordered to active duty on 1 July 1984.

3.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the Regular Army on 31 August 2000 after serving honorably on active duty for a total of 20 years, 2 months, and 13 days.  He was placed on the Retired List effective 1 September 2000.

4.  In connection with the processing of this case, the Military Pay Operations - Cleveland, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify the status of the FSM's participation in the SBP and, based on the FSM's death, details of any inquiries/requests for payment of SBP benefits.

   a.  A DFAS official confirmed that the FSM was divorced from his first spouse on 27 July 2004, married the applicant on 22 December 2004, and they were divorced on 15 June 2010.

   b.  The FSM notified DFAS to suspend his SBP on 18 June 2010.

   c.  The FSM died on 6 September 2010 with no eligible SBP beneficiary.

5.  In support of her application, the applicant provides the following documents.

   a.  A District Court, Coryell County, Texas, Original Petition for Divorce, filed on 12 April 2010.  This document shows the FSM and applicant were married on 22 December 2004, ceased to live together on 14 March 2010, and there were no children (born, adopted or expected) of the marriage.  It also shows the FSM and applicant were to enter into an agreement for the division of their estate.

   b.  A District Court, Coryell County, Final Decree of Divorce, that shows the FSM and applicant were divorced on 15 June 2010 and that there were no children (born, adopted or expected) of the marriage.  There is no mention of an order pertaining to the FSM's retired Army pay, survivor benefits, or SBP beneficiary designation.

	c.  A State of Texas, County of Coryell, Certificate of Death shows that the FSM died on 6 September 2010 and his marital status at the time of death was listed as divorced.

	d.  A General Affidavit by Kxxxxx A. Fxxxxx, dated 22 October 2010, that indicates he has known the FSM and applicant for almost 10 years.  During the period between their separation and the FSM's death the FSM expressed that if he and the applicant had remained married she would be quite well-off financially after his death.  The FSM also expressed that since they were divorced, the applicant would only be entitled to half of his survivor benefits and the rest would go to his mother.  He does not believe it occurred to the FSM that the wording on his beneficiary designation form would prevent the applicant from receiving survivor benefits.  He believes the FSM would have made the necessary changes if he had known.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  Retiring members and spouses were to be informed of the SBP options and effects.

7.  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.  Title 10, U.S. Code, Chapter 73, provides that a 
spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: 
(1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

8.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the FSM's participation in the SBP should be reviewed to determine if she is entitled to SBP payments based on former spouse coverage.

2.  The evidence of record shows that upon retirement from the Army the FSM elected SBP with spouse only coverage, named his spouse as his designated SBP beneficiary, and SBP premiums were deducted from the FSM's retired pay.

3.  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 a former spouse SBP coverage election be deemed to have been made within 1 year of the date of a court order of divorce or filing involved.

4.  The evidence of record shows the applicant and FSM divorced on 15 June 2010.

   a.  The divorce documents that the applicant provided contain no evidence of a court order or voluntary written agreement pertaining to the FSM's SBP beneficiary designation.  In fact, the applicant received nothing in the way of military-related pay or benefits from the divorce.  Thus, the FSM had no reason to contact DFAS, except to suspend spouse coverage or, if so inclined, to voluntarily change his coverage to former spouse coverage.

   b.  On 18 June 2010, just 3 days after the divorce, the FSM contacted DFAS and placed his SBP spouse coverage in suspension.  Thus, the FSM's SBP was suspended based on divorce and the payment of SBP premiums was stopped.

   c.  Had the FSM intended for the applicant to remain covered under his SBP, it is reasonable to conclude that he would not have suspended SBP premiums. Rather, he would have simply changed his SBP coverage from spouse to former spouse.  However, he did not do that.

   d.  Based on the available evidence, the applicant is not entitled to make a "deemed election."

   e.  Therefore, in view of the foregoing, the applicant is not entitled to SBP in this case.


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 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)                                         AR20100026585



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ABCMR Record of Proceedings (cont)                                         AR20100026585



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