IN THE CASE OF:
BOARD DATE: 12 January 2012
DOCKET NUMBER: AR20110010272
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 correction of her deceased former husband's records, a former service member (FSM), to show he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage.
2. The applicant states the FSM was not aware the change of election was required. She states he maintained the premiums until his death on 22 July 2010.
3. The applicant provides:
* Certificate of Retirement, dated 9 July 1986
* Certificate of Death, dated 22 July 2010
* Chief, Army Retirement Services, letter, dated 14 April 2011
* Army Review Boards Agency (ARBA) letter, dated 3 May 2011
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 15 October 1955. He enlisted in the Regular Army on 10 August 1973. He and the applicant married on 6 May 1977.
2. On 11 June 1984, the FSM elected to participate in the SBP for spouse and dependent children coverage, full base amount.
3. The FSM was retired due to temporary physical disability on 14 August 1984 and placed on the Temporary Disability Retired List (TDRL) on 15 August 1984. He was removed from the TDRL on 9 July 1986 and permanently retired on 10 July 1986.
4. On 8 December 2008, the applicant and the FSM divorced. There is nothing in the marital dissolution agreement that pertains to the FSM's SBP benefits.
5. The FSM died on 22 July 2010. His death certificate shows he was married at the time of his death. It shows the name of his surviving spouse and the name shown is not the applicant's.
6. The available records do not show the FSM ever made a voluntary election to change his SBP election from spouse and dependent children to former spouse coverage within 1 year after the divorce.
7. The applicant submits a letter to ARBA stating the events that led to her marriage to the FSM and the circumstances that led to their divorce. She states neither she nor the FSM were aware that he was required to change his SBP election from spouse to former spouse. She also submits a letter from the Chief, Retirement Services, that shows she was correctly informed by the Department of Defense that she is not the eligible SBP beneficiary by law and the FSM died without an eligible SBP beneficiary. She was informed that she could apply to this Board for possible relief.
8. 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.
9. 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.
10. 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 SBP or was still on active duty and had not yet made an SBP election.
11. 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 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 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted and her supporting documents have been considered.
2. There is nothing in the marital dissolution agreement that pertains to the FSM's SBP benefits.
3. The death certificate shows the FSM was married at the time of his death on 22 July 2010. It shows the name of the surviving spouse and that individual may be legally entitled to his SBP benefits, if all other qualifications are met.
4. SBP elections are made by category, not by name. The FSM and the applicant divorced in December 2008. The available records do not show he ever made a voluntary election to change his SBP election from spouse and dependent children to former spouse within 1 year following the divorce.
5. Therefore, the applicant is not entitled to SBP benefits. In view of the foregoing, her request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_____________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) AR20110010272
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110010272
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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