IN THE CASE OF:
BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20100026841
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 spouse, a former service member (FSM), be corrected to show his Survivor Benefit Plan (SBP) beneficiary was changed from current spouse to former spouse.
2. The applicant, the former spouse, states that the divorce agreement between her and the FSM clearly states that she was supposed to get the SBP benefit. She was not advised that she needed to complete any paperwork.
3. The applicant provides copies of the divorce decree and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was an Army Reserve major. On 15 March 1977 he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he elected reduced spouse only SBP coverage and named the applicant as his spouse. He retired from active duty due to length of service on 31 March 1977.
2. The 1987 divorce decree provided that the FSM agreed to obtain and keep in effect the SBP for the benefit of the applicant. The FSM died in October 2010.
3. The Defense Finance and Accounting Service (DFAS) advised, on 10 March 2011, that the current spouse is listed as the SBP beneficiary but that no payment had been made to her because of an unreconciled debt in the account.
4. 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name.
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.
7. 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.
8. 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.
9. 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 current designation of the current spouse precludes the possibility of favorable consideration of the applicant's request.
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 provides that, within 1 year of the divorce, a former spouse may request that a Former Spouse SBP coverage election be deemed to have been made.
3. Although the divorce decree required the FSM to continue SBP protection for the applicant, the law provided for her to make a deemed election if he failed to do so. They both failed to do so.
4. SBP coverage is now vested in the FSM's widow. Her interest in the SBP cannot be divested without due process.
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) AR20100026841
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100026841
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100019867
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. 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. As a result, the Board recommends...
ARMY | BCMR | CY2014 | 20140011084
The applicant requests a correction of the record of her deceased former spouse, a retired former service member (FSM), to show that he made an election for former spouse coverage under the Survivor Benefit Plan (SBP). The evidence of record does not support the applicants request for correction of FSM's record to show that he made a voluntary election for former spouse coverage under the SBP. When the applicant and FSM divorced, there was no former spouse provision in their divorce...
ARMY | BCMR | CY2011 | 20110003140
His service record is void of evidence which indicates the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of the divorce. 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. However, there is no evidence which...
ARMY | BCMR | CY2009 | 20090008265
There is no evidence of record or independent evidence provided by the applicant that shows the FSM ever made the Former Spouse SBP election directed in the divorce decree, or that the applicant requested a deemed election be made within one year of their divorce. 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...
ARMY | BCMR | CY2014 | 20140011733
The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death. However, the FSM's pay records do not reflect receipt of the former spouse election from the FSM nor did DFAS receive a deemed election request from the applicant within one year of the divorce. When the FSM...
ARMY | BCMR | CY2014 | 20140019417
The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. On 25 March 1987, the FSM and applicant were divorced. 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 retiree had elected spouse...
ARMY | BCMR | CY2004 | 20040009877C070208
The applicant requests, in effect, that the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage. 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 the SBP or was still on active duty and had not yet made an SBP election. The law also permits the...
ARMY | BCMR | CY2011 | 20110016751
If the member fails to make 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, if the request is made within one year of the date of a court order of divorce. The evidence of record indicates that the FSM failed to elect SBP coverage for his former spouse at the time of his retirement on the DD Form 2656. As a result, the Board recommends that all Department of the Army records of the...
ARMY | BCMR | CY2013 | 20130003451
The applicant, the former spouse of a retired and deceased former service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on his death. 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. The applicant and the FSM were divorced in 1995.
ARMY | BCMR | CY2009 | 20090019162
There is no evidence in the FSM's record that shows he submitted a request to DFAS to change his SBP coverage to former spouse coverage or that the applicant requested a deemed election within 1 year of their divorce. c. A letter from DFAS Retired and Annuity Pay, dated 30 June 2009, informed the applicant her request for former spouse coverage to be deemed was received in excess of the 1-year period following the date of the court order awarding her SBP coverage. There is no documentary...