BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110009158 


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, as the former spouse of a deceased former service member (FSM) that she be designated as the beneficiary of the FSM's Survivor Benefit Plan (SBP).   

2.  The applicant states she was not authorized SBP by the Defense Finance and Accounting Service (DFAS) because she did not submit a deemed election and her former husband did not change the election from spouse to former spouse.  The court order awarded her SBP and her former husband continued to make all payments.  She did not believe he knew he was supposed to change his SBP election to former spouse and she was not aware that she was supposed to complete a deemed election.  Neither her counsel nor her former husband ever informed her of this.  She believes he intended for her to receive the SBP annuity.  

3.  The applicant provides:

* Divorce decree
* FSM’s Certificate of Death
* DD Form 2656-7 (Verification for Survivor Annuity)
* DOH/CHS 023 (Center for Health Statistics Affidavit for Correction)

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 15 November 1945.

2.  The applicant and the FSM were married on 6 March 1948.

3.  The FSM retired on 31 March 1966.

4.  On 31 January 1974, the FSM completed and signed a DD Form 1881 (SBP Election Certificate – By Existing Retiree).  In Section II (Marital Dependency & Election Status) he stated he was married, had dependent children, and wanted an annuity under the SBP based on the full amount of retired pay.  In Section III (Family Information) he named the applicant as his spouse.  This form was witnessed on the same day.

5.  The applicant and the FSM's divorce decree, dated 18 November 1983, stipulated the FSM should continue the SBP with the applicant as beneficiary.    She and the FSM consented to the terms of the divorce and it was ordered, adjudged, and decreed on 15 December 1983.  

6.  There is no evidence the FSM contested the court order pertaining to the payments from his retired pay.

7.  The FSM died on 6 October 2010.  His death certificate stated he was divorced.  

8.  On 20 October 2010, the applicant completed and signed a DD Form 2656-7 claiming the SBP.

9.  On 21 September 2010, DFAS provided a copy of the FSM’s original AGPZ Form 977 (Data for Retired Pay) and DD Form 418 (Data for Payment of Retired Armed Forces Personnel, and Retired Serviceman’s Family Protection Plan and SBP elections).  DFAS verified they never received a divorce decree or deemed election for that type of coverage.  

10.  DFAS has stated that they refunded the SBP costs to the applicant as the arrears of pay beneficiary.

11.  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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

12.  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.  Costs were paid under the insurable interest provisions (more expensive than spouse cost provisions).
13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members

14.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

15.  Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

16.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be designated as the annuitant of the FSM's SBP was carefully considered.

2.  The evidence of record shows the FSM was retired on 1 April 1966.  On 31 January 1974, he completed a DD Form 1881 and elected SBP coverage for his spouse, who at the time was the applicant.   He and the applicant were divorced on 15 December 1983.  It appears he did not notify DFAS of his divorce or otherwise attempt to suspend his coverage.  He died on 6 October 2010.

3.  There is no evidence the FSM attempted to change his elected SBP from spouse to former spouse prior to his death.  However, the FSM continued to pay spouse premiums, and was divorced at the time of his death.  Quite clearly, he intended to honor the terms of his divorce.  

4.  Considering the facts and circumstances of this case, and since there is no widow with a superior vested interest to defect the applicant's equitable interest, it would now be appropriate, as a matter of fairness and equity, to correct the FSM's records to show he requested an SBP change to former spouse coverage within 1 year of his divorce from the applicant.

5.  DFAS has stated they have already refunded the SBP premiums to the applicant.  Those premiums will have to be paid back to DFAS.  In addition, at the time of the December 1983 divorce former spouse SBP costs were paid at the insurable interest rate.  Former spouse rates at the spouse cost were not in effect until March 1986.  Additional premiums for the period December 1983 to March 1986 may also have to be paid.

6.  In view of the foregoing, 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 coverage from "spouse" to "former spouse" within one year of their divorce in December 1983 and his request was timely received and processed by the appropriate DFAS office; 

	b.  showing the FSM requested his SBP former spouse coverage be paid at the spouse rate effective March 1986 and his request was timely received and processed by the appropriate DFAS office; and

	c.  paying the applicant the SBP annuity retroactive to the day after the FSM's death after all appropriate SBP premiums have been paid.



      _______ _   _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)                                         AR20110009158





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ABCMR Record of Proceedings (cont)                                         AR20110009158



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