IN THE CASE OF:	 

		BOARD DATE:	    19 July 2011

		DOCKET NUMBER:  AR20100028877 


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, the former spouse of a deceased former service member (FSM), requests, in effect, payment of the Survivor Benefit Plan (SBP) annuity based on the death of her former spouse.

2.  The applicant states, in effect, that she and her former husband divorced in 2005.  After the FSM's death in November 2009, she contacted the Defense Finance and Accounting Service (DFAS) and was told she was not entitled to the SBP annuity because she did not send a copy of her divorce decree to DFAS within 1 year of her divorce.  She states that at the time of her divorce, she was unaware of the requirement to forward her divorce decree to DFAS within 1 year, and her attorney advised her it was not necessary.  

3.  The applicant provides:

* Qualifying Court Order and Judgment of Absolute Divorce, issued by the Circuit Court of Anne Arundel County, MD
* FSM's Commonwealth of Virginia, Certificate of Death
* DFAS-Cleveland Form 7220 (Retiree Account Statement)
* DFAS letter to the applicant with attached Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* DA Form 4240 (Data for Payment of Retired Army Personnel)
* DFAS letter to the applicant, dated 30 April 2010
* DFAS Child Annuity Claim Packet


CONSIDERATION OF EVIDENCE:

1.  The FSM's military records are not available to the Board for review; however, there were sufficient documents available for the Board to conduct a fair and impartial review of this case.  

2.  The FSM's Qualifying Court Order, with accompanying Judgment of Absolute Divorce, shows he was born on 13 November 1949 and married the applicant on 21 February 1976.  These forms also show he served on active duty from         28 January 1971 through 31 January 1991.

3.  On 30 January 1991, the FSM completed a DA Form 4240, wherein he indicated he was married and had dependent children.  He further elected spouse and dependent children SBP coverage, based on the full amount of his retired pay.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  

4.  On 1 February 1991, after sufficient service on active duty, the FSM retired in the rank of chief warrant officer two (CW2).  

5.  On 25 February 2005, the applicant was granted an Absolute Divorce from the FSM by the Circuit Court for Anne Arundel County, MD.  Their Judgment of Absolute Divorce, with accompanying Qualifying Court Order dated 22 March 2005, stipulates that the applicant, as the former spouse, would remain the FSM's SBP annuity beneficiary.  

6.  There is no indication the FSM notified DFAS of the divorce or that the applicant submitted a request for deemed election within one year of their divorce.  Additionally, there is no indication the FSM changed his SBP coverage from "spouse" to "former spouse" coverage.

7.  On 17 November 2009, the FSM died.  His certificate of death shows he was divorced at the time of death.  Additionally, there is no indication in his records that he remarried subsequent to his divorce from the applicant.

8.  The FSM's DFAS-CL Form 7220 shows he continued to pay SBP premiums, for spouse and dependent children coverage, through the date of his death.

9.  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.  

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

11.  Title 10, U.S. Code, section 1448(b)(3) 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.

12.  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 shows the FSM elected SBP spouse and dependent children coverage, based on the full amount of his retired pay.  He and the applicant were divorced on 25 February 2005.  Their divorce decree stipulated that he would maintain the applicant as the beneficiary of his SBP annuity.  There is no evidence that shows he changed his SBP election from "spouse" to "former spouse" within 1 year of the divorce, and there is no indication the applicant requested the SBP coverage be deemed to her as a former spouse.  

2.  SBP election is by category, not by name.  Once the FSM and the applicant were divorced, she was no longer his beneficiary.  However, despite being granted an Absolute Divorce on 25 February 2005, and despite the fact that he did not remarry, the FSM continued to pay SBP premiums through the date of his death.

3.  It appears 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 and his request was received and processed by DFAS in a timely manner.  Therefore, she should be entitled to the annuity.


  
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 individual concerned be corrected by:

* showing the FSM changed his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce
* showing his request was received by DFAS and processed by the appropriate office in a timely manner
* paying the applicant the SBP annuity retroactive to 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)                                         AR20100013902



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ABCMR Record of Proceedings (cont)                                         AR20100028877



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