BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028456 


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, in effect, correction of the record of her former husband, a deceased former service member (FSM), to show a request for a deemed election of former spouse coverage under the Survivor Benefit Plan (SBP) was filed in a timely manner.  

2.  She states, in effect, she first realized the SBP coverage awarded to her in their divorce decree was not properly recorded when the Defense Finance and Accounting Service (DFAS) denied her request for payment of the SBP annuity after the FSM's death.

3.  She provides a self-authored statement that includes a list of enclosures identifying the documents she has provided.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records are not available for the Board to review.  This case is being considered based on documentation provided by the applicant and the FSM's obituary posted on a funeral home's website.

2.  The FSM retired on 30 April 1982 after completing 25 years and 22 days of active military service.  

3.  The available records do not show the SBP election he made prior to his retirement, if any.

4.  A Marriage License shows the FSM and the applicant were married on 30 September 1951.  

5.  On 23 April 1990, they divorced.  The Decree of Divorce ordered that the applicant would receive 45 percent of the FSM's net disposable military retirement income and ordered the FSM to maintain survivor's benefits for her in an amount sufficient to protect her interest in his U.S. Army retirement.

6.  A JUMPS-Army Retired/Annuitant Pay Statement for October 1991 shows the FSM was paying for SBP coverage and shows his federal withholding status as "M02," or married with two exemptions.

7.  A Retiree Account Statement effective 2 December 2009 shows the FSM's former spouse (the applicant) was receiving a portion of his retired pay and that he was paying SBP costs for spouse-only coverage for a spouse with a date of birth (DOB) of 21 May 1932.  The statement shows he had paid SBP costs for 331 months.  The statement also shows his federal withholding status was "married" with two exemptions.

8.  The FSM died on 14 August 2010.  The Certificate of Death shows he was divorced.

9.  The FSM's obituary does not show he remarried after he was divorced from the applicant.

10.  On 23 August 2010, the applicant submitted a DD Form 2856-7 (Verification for Survivor Annuity) to DFAS claiming SBP coverage as a former spouse.

11.  On 16 September 2010, DFAS informed the applicant her request was denied on the basis that she was not eligible for SBP because she had not requested a deemed election for former-spouse coverage within 1 year of the date of their divorce.  

12.  She provides statements from two of her children in which they state, in effect, that their father, the FSM, wanted her to have the income from SBP and that he left no surviving spouse.  

13.  She provides a Driver License showing her DOB is 21 May 1932.

14.  In her statement, she indicates her attorney submitted a certified copy of the divorce decree to the United States Army Finance and Accounting Center, the predecessor of DFAS, which she and the FSM believed to be sufficient notice.  She received her portion of the FSM's retired pay until his death, but when she applied for her SBP annuity, DFAS informed her they had not received separate notice of SBP being ordered by the divorce decree within 1 year of the divorce.

15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.

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 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.

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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of the FSM's record to show a request for a deemed election of former spouse SBP coverage was filed in a timely manner.

2.  A court with proper jurisdiction ordered the FSM to provide SBP coverage to the applicant.  She indicates she and the FSM believed that submitting a copy of their divorce decree to the predecessor of DFAS was sufficient to update his record to reflect the court's order.

3.  The FSM continued to pay SBP costs for spouse-only coverage for nearly 20 years after their divorce even though he did not have a spouse.  It is reasonable to presume that he continued to pay this coverage to comply with the terms of their divorce.

4.  In view of the foregoing, it would be appropriate to correct the FSM's record to show the applicant submitted a request for a deemed election of former spouse SBP coverage within 1 year of their divorce and pay her the SBP annuity beginning on the earliest possible date after his death.

BOARD VOTE:

___x_____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the FSM be corrected by showing the applicant filed a timely request for a deemed election of former spouse coverage under the SBP and by paying her the SBP annuity retroactive to the day after his 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)                                         AR20100028456





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028456



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1