IN THE CASE OF:	  

		BOARD DATE:	    25 October 2011

		DOCKET NUMBER:  AR20110008388 


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, a former spouse of a deceased former service member (FSM), requests correction of the FSM's records to show her as the beneficiary of his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states the affidavits she is submitting with her application support her request that her former husband's intention was to elect SBP coverage for former spouse.  Upon retirement, he designated her as the beneficiary of his SBP.  He continued to pay premiums from the date of his retirement until he passed away in 2009.  

3.  The applicant provides supporting evidence through counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the records of the applicant's former husband be corrected to show he changed SBP coverage from spouse to former spouse. 

2.  Counsel states:

* The FSM's intentions concerning the continued financial support of his former spouse, the applicant, is clear
* He and the applicant were married for many years; he cared for her; and they had children
* Although they were divorced, they remained friends and he continued to provide financial support to her
* He maintained payment of the SBP premiums
* He changed one of his insurance documents after their divorce by designating a new beneficiary; yet he continued his employment policy with the applicant as his named beneficiary
* Through no fault of the applicant, the attorney who handled her divorce neither explained nor drafted a provision to provide the applicant with benefits associated with the FSM's retirement

3.  Counsel provides:

* Denial letter from the Defense Finance and Accounting Service (DFAS)
* Applicant's self-authored statement
* Divorce judgment/order
* FSM's death certificate
* Staples receipt
* DD Form 2656-7 (Verification for Survivor Annuity)
* W-4P (Withholding Certificate for Pension or Annuity Payments)
* Direct Deposit Form
* Request for deemed election
* Claim for Unpaid Compensation of Deceased Member of the Uniformed Services
* Statement from a retired command sergeant major (CSM)
* Two statements from friends
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM's retirement orders

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 23 December 1958 and initially entered active duty on 29 September 1978.  He married Lisa, the applicant, on 25 December 1985.

2.  The FSM served through multiple reenlistments in a variety of stateside and/or overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  His pay records at DFAS show, prior to his retirement, he completed a        DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to the applicant, and he elected to enroll in the SBP, spouse and child coverage (date of birth 25 April 1989), full amount. 
4.  On 30 September 1998, the FSM retired by reason of sufficient service for retirement and on 1 October 1998, he was placed on the retired list in his retired rank/grade of SSG/E-6.  He was credited with over 20 years of total active service.

5.  On 16 December 2008, the FSM and applicant entered into a consent order through the court on the issue of equitable distribution of property.  The consent order stipulated that the applicant would receive 50% of the FSM's retirement from the military; however, their consent order is silent with respect to the SBP.

6.  On 16 February 2009, the court granted the FSM and applicant a final divorce. 

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

8.  On 14 July 2009, the FSM died.  His death certificate listed him as divorced.

9.  On 25 August 2009, a DFAS official notified the applicant that while closing the FSM's retirement account, it was noted that charges for the SBP were being deducted from his retired pay until the time of his death.  Additionally, DFAS had been informed that he was not married at the time of his death.

10.  On 25 October 2009, the applicant completed a DD Form 2656-7 and submitted it to DFAS as a verification of her eligibility for the FSM's annuity.

11.  On 3 February 2010, she submitted a notarized statement to DFAS requesting to deem the SBP election to her.  However, on 17 February 2009 [sic] (2010), a DFAS official replied to the applicant's application concerning her eligibility to receive an annuity under the SBP of her deceased former husband.  The official further notified her that a review of her divorce decree determined that she was not awarded the SBP annuity.  

12.  On 19 July 2010, by letter, a DFAS official further notified the applicant that in order for the former spouse to be eligible for the SBP, the former spouse must be awarded the SBP annuity in the divorce decree and she would have had to deem the election within one year of her divorce.

13.  Counsel submits three statements from a retired CSM and two friends who all state they have known the FSM and/or the applicant for some time and all opined that they believed the SBP coverage would revert to the applicant.

14.  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.

15.  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.

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

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that when the FSM retired in 1998, he elected to participate in the SBP.  In February 2009, the FSM and the applicant were divorced.  Their divorce decree did not obligate the FSM to change SBP coverage from "spouse" to "former spouse."  He neither did so nor informed DFAS of his divorce.  

2.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  A change in SBP to former spouse beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which the evidence of record shows he did not make.  

3.  Nevertheless, there is no indication the FSM remarried; yet, he continued to pay SBP premiums until his death, which is indicative of the fact that he intended to provide an annuity for the 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, as matter of equity, 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.

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 he changed his SBP coverage from "spouse" to "former spouse" on 1 April 2009
* showing his request was timely received and processed by the appropriate DFAS office
* 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)                                         AR20110008388



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ABCMR Record of Proceedings (cont)                                         AR20110008388



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