IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026946 


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 entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her former husband, a former service member (FSM).

2.  The applicant states she is trying to receive the SBP payment as is stated in her divorce papers and signed by her former husband.  He had every intention of her receiving the SBP if something happened to him.  They talked periodically after their divorce and it is one of the reasons he did not remarry.  She completed a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and submitted that (when they separated) in October 2006.  Neither one of them was under the impression they had to file any further paperwork as it was already stated in their divorce papers that she was to receive the SBP payment.  The deduction of $103.16 was faithfully paid every month.  Her divorce was final in February 2008.  She also never received the cost of living which she was due.

3.  The applicant provides:

* A marriage certificate
* A certificate of death
* A DD Form 2293
* A divorce decree
* A retiree account statement
* A birth certificate
* Two social security cards
* A driver's license
* An identification card
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army (RA) on 25 April 1975 and he held military occupational specialty 13B (Field Artillery Cannon Crewmember).  He was honorably released from active duty on 24 April 1978. 

2.  He subsequently enlisted in the Army National Guard (ARNG).  He was married on 19 March 1985.  He was honorably released from the ARNG on 5 January 1989 and he enlisted in the RA on 6 January 1989.

3.  He served through multiple extensions or reenlistments, within and outside the continental United States, and he attained the rank/grade of staff sergeant (SSG)/E-6.

4.  On 30 September 2006, the FSM retired by reason of sufficient service for retirement and on 1 October 2006 he was transferred to the Retired List in his retired rank/grade of SSG/E-6.  He was credited with over 21 years of active service.

5.  Defense Finance and Accounting Service (DFAS) records show the FSM enrolled in the SBP for spouse coverage beginning on 1 October 2006.

6.  On 1 October 2007, the FSM and the applicant entered into a settlement agreement.  This agreement stated the FSM agreed to elect SBP former spouse coverage for the applicant at the current level of benefit.  It further stated the applicant was the current SBP beneficiary and the FSM would take all steps necessary to ensure the applicant continued to be the beneficiary.

7.  On 26 February 2008, he and the applicant were divorced.  The final judgment of dissolution of marriage approved, incorporated, and amended the marital settlement agreement that awarded the applicant the SBP.

8.  There is no indication the FSM informed DFAS of his divorce or that the applicant made a deemed election to change SBP coverage from "spouse" to "former spouse" within 1 year of the date of the divorce.

9.  On 28 May 2010, the FSM died.  His death certificate listed him as divorced.

10.  DFAS records show the FSM continued to pay SBP premiums until his death.  He made 45 payments since his enrollment.  His last premium paid was at the rate of $103.16 for the month of May 2010.

11.  There is no indication in the FSM's records that there was a cost of living increase due to his former spouse.

12.  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.  Elections are made by category, not by name.

13.  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.

14.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

15.  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 coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  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 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.

17.  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:

1.  The evidence of record shows that when the FSM retired in 2006, he elected SBP for spouse coverage.  He was still married to the applicant at the time.

2.  In 2008, the FSM and the applicant were divorced.  Their divorce decree obligated the FSM to change his SBP coverage from "spouse" to "former spouse." He neither did so nor informed DFAS of his divorce.  Additionally, the applicant did not submit a deemed election within 1 year of their divorce.

3.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  Nevertheless, the FSM was required to make a former spouse election as stipulated in their divorce.  He did not do so, and although there is no indication he remarried, he continued to pay SBP premiums until his death, which is indicative of the fact that he intended to comply with the terms of the divorce and provide an annuity for applicant's benefit.

4.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the applicant should be paid the SBP annuity based on his death.

5.  With respect to the cost of living increase request, there is no evidence in the available records and the applicant did not provide any evidence to show a cost of living increase was due her or what record she wanted corrected to reflect a cost of living increase.  Therefore, there is insufficient evidence to grant her the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  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 partial 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 changed his SBP coverage from "spouse" to "former spouse" within 1 year of their divorce in February 2008;

	b.  showing his request was timely received and processed by the appropriate DFAS office; and

	c.  paying the applicant the SBP annuity retroactive to the day after the FSM's death.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the cost of living increase.



      ____________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)                                         AR20100026946





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026946



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1