IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011 

		DOCKET NUMBER:  AR20110002980 


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, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage.

2.  The applicant states:

* she was the FSM's wife 18 years and he meant for her to have his SBP benefits
* the FSM paid his SBP premiums until his last paycheck
* she and the FSM married in 1987 and divorced in 2006
* the FSM never changed his election because he intended for her to get the benefits for which he paid
* she and the FSM had a good relationship and he always said he did not change his election

3.  The applicant provides copies of:

* a letter to an Army Board for Correction of Military Records staff analyst, dated 5 April 2011
* State of North Carolina Application, License and Certificate of Marriage
* Motion for Entry of Default and Judgment for Divorce
* 
a letter from the Defense Finance and Accounting Service (DFAS), dated 14 September 2010

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 30 March 1973.  He remained a member of the RA through reenlistments and extensions.

2.  The applicant and the FSM married on 22 June 1987.

3.  The FSM retired on 30 June 1993.  His records show that at the time of his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) indicating he was married and had dependent children.  He elected to participate in the SBP for spouse only coverage, full base amount.  The applicant's name is shown on the DA Form 4240 as his spouse.

4.  On 30 January 2006, the applicant and the FSM divorced.  There is nothing in the Motion for Entry of Default and Judgment for Divorce indicating the applicant submitted anything pertaining to the FSM's SBP benefits.

5.  The available records do not show the FSM ever made a voluntary election to change his SBP election from spouse only to former spouse within 1 year after the divorce.

6.  The FSM died on 9 May 2010.  

7.  In a letter from DFAS, dated 14 September 2010, the applicant was notified that she received payments from the FSM under the Former Spouse Protection Act in the amount of $516.00 a month and that payment at this amount ended with the death of the FSM.

8.  During the processing of this case, a staff analyst contacted DFAS for confirmation of the applicant's SBP payments.  According to DFAS officials, the FSM's SBP premiums were paid until the date of his death and no claim has been made for SBP other than that of the applicant.  The staff analyst was also able to obtain a copy of the FSM's "Formulario Unico De Parte Clinico De Defuncion," which is the Panama version of his Certificate of Death.  This document shows that at the time of his death he was "Unido."  This document was forwarded to the Embassy of Panama for translation and investigation.  It appears that the term "Unido" refers to a partnership short of marriage.  According to the Vice Consul, their investigation revealed the FSM was not legally married at the time 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.

11.  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.

12.  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.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse, who will become the beneficiary after completing one year of marriage unless the retiree desires not to resume spouse coverage, which is an option.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct the FSM's record to show he elected to change his spouse SBP coverage from spouse only to former spouse coverage in conjunction with her January 2006 divorce was carefully considered and found to have merit.  

2.  By law, SBP may be awarded to a former spouse incident to a proceeding of divorce.  If the FSM does not voluntarily request former spouse coverage, a deemed election may be made by the former spouse within 1 year of the divorce. However, there is no mention of SBP benefits in the Motion for Entry of Default and Judgment for Divorce.

3.  The evidence of record shows the FSM did not change his SBP election from spouse only to former spouse within 1 year of the divorce.  

4.  Nevertheless, the FSM was not married and the evidence confirms that he continued to pay SBP premiums until the date of his death on 9 May 2010.  The applicant's name is shown on the DA Form 4240 as his spouse and it is reasonable to presume that it was his intent that the applicant be entitled to his SBP benefits upon his death.

5.  In view of the foregoing, and as a matter of equity, the FSM's records should be corrected as recommended below.

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:

	a.  showing the FSM changed his SBP election from spouse to former spouse coverage on 31 January 2006; and

	b.  paying the applicant an annuity based on the FSM’s election to participate in the SBP with former spouse coverage, effective the day after the date of his death, if otherwise qualified.



      _______ _   _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)                                         AR20110002980



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ABCMR Record of Proceedings (cont)                                         AR20110002980



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