IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110004539
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 former husband, a former service member (FSM), be corrected to show a Survivor Benefit Plan (SBP) election of former spouse.
2. The applicant states, in effect, it was the FSM's intent to name her as the former spouse beneficiary on his SBP election form.
3. The applicant provides her divorce decree and marital separation agreement, the divorce decree of the FSM and his subsequent wife, and an affidavit from the FSM requesting former spouse SBP election for the applicant in support of the application.
CONSIDERATION OF EVIDENCE:
1. On 2 March 1986, the FSM and applicant were married.
2. On 31 October 2006, the FSM was honorably retired, in the rank of sergeant first class (SFC)/E-7, after completing 20 years and 29 days of active military service.
3. On 23 May 2008, the FSM and applicant were divorced. In a Marital Settlement Agreement entered into by the applicant and FSM in conjunction with their divorce in the Chancery Court for Sullivan County at Blountville, Tennessee it was agreed and ordered that the FSM would provide the applicant one half of his monthly retirement income from the military; and that he would be solely responsible for keeping the applicants survivor benefits in effect. The FSM authenticated the agreement with his signature certifying that he intended to be bound by the agreement.
4. The FSM remarried and on 14 May 2010, he was divorced from that spouse. The Marital Settlement Agreement entered into by the FSM and this spouse did not address military retirement or survivor benefits.
5. The DFAS pay records pertaining to the FSM show he elected spouse coverage on 21 July 2006, while still married to the applicant. It also shows the applicants SBP plan coverage was suspended as of May 2008.
6. A Retiree Account Statement for the FSM, dated in January 2009, shows an SBP premium deduction of $114.18 was still being deducted from the FSMs pay as of that date.
7. The FSM provides an affidavit with this application in which he states he reviewed the application and confirms the applicants statements are correct and that he intended to elect the applicant as the covered beneficiary for SBP as a former spouse when they divorced in 2008. He concludes by indicating he supports the applicants request for SBP coverage as former spouse.
8. 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.
9. 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. There is no provision allowing the former spouse to request a deemed election when SBP is not court-ordered.
DISCUSSION AND CONCLUSIONS:
1. The applicant's claim of entitlement to an SBP coverage as a former spouse has been carefully considered and found to have merit. By law, former spouse SBP elections must be made within 1 year of a divorce.
2. The available evidence shows the FSM agreed to continue SBP coverage for the applicant in the marital settlement agreement entered into in conjunction with their divorce on 23 May 2008. Although the FSM did not change his SBP coverage to former spouse within 1 year of the divorce, it appears it was his intention to do so, as he indicates in the affidavit provided with the application.
3. Further, even though the FSM remarried and again divorced, his military retired pay and SBP are not mentioned in the marital settlement agreement at the time of his 2010 divorce.
4. Based on the evidence of record it appears the FSM clearly intended to comply with the terms of his divorce and continue to provide SBP coverage for the applicant as a former spouse. Thus, it would be appropriate to correct the record to show the FSM changed his SBP election from spouse to former spouse on the date of his divorce from the applicant and the FSM should pay all back SBP premiums due based on former spouse SBP coverage from the date of his divorce from the applicant through the present.
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" on 23 May 2008, the date of his divorce from the applicant; and
b. collecting all back SBP premiums due as a result of this correction.
________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) AR20110004539
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ABCMR Record of Proceedings (cont) AR20110004539
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