IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110011434 


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 change of the FSM's Survivor Benefit Plan (SBP) election from spouse to former spouse coverage and payment of the SBP annuity.

2.  She states she was misinformed about her pending survivor benefits by the Defense Finance and Accounting Service (DFAS) that led her to resigning from her job.

3.  She provides:

* Letter from DFAS
* DD Form 2656-7 (Verification for Survivor Annuity)
* Financial Management Service (FMS) Form 2231 (FastStart Direct Deposit)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Self-authored chronology of events with DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 30 April 1973.  He and the applicant were married on 16 October 1981.  


2.  The FSM continued to serve on active duty and he subsequently retired from the Regular Army on 1 May 1993.  At that time, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and elected to participate in the SBP for spouse only coverage, full base amount.  The applicant is listed as his spouse.

3.  The FSM and the applicant divorced on 15 February 2000.  The divorce decree is not available.

4.  His service record is void of evidence that indicates the FSM made a voluntary election or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.

5.  The FSM married L------ M------- on 3 May 2008.

6.  The FSM died on 28 May 2009.  His State of Louisiana Certificate of Death shows his marital status as married and his surviving spouse as L----- M-------.

7.  On 23 June 2009, the applicant completed a DD Form 2656-7, FMS Form 2231, and Form W-4P.

8.  The applicant provided a 2-page handwritten letter that outlined the following:

	a.  On 6 June 2009, the applicant received notification of termination of payments from the FSM's retired pay due to his death.

	b.  On 8 June 2009, the applicant spoke with a representative from DFAS and was told her name was still listed on the surviving widow's benefit account.  She was also told it would take a month for the monies to be disbursed after paperwork was completed.

	c.  On 16 June 2009, the applicant spoke with another representative at DFAS to confirm whether her name was on the SBP account.  The representative asked her name and told her the amount would be 55 percent (%) of the FSM's retired pay ($781.00 monthly).  She was also told she would receive retroactive pay from the date of the FSM's death.  She faxed paperwork to DFAS.

	d.  On 23 June 2009, the applicant called DFAS to confirm receipt of the paperwork she faxed.  She later spoke with a representative in the Annuity Department who told her she would receive approximately $780.00 monthly.


	e.  On 17 July 2009, the applicant contacted DFAS again in reference to a letter she received, dated 13 July 2009, that stated "in reviewing Mr. G-----' retired pay account, he elected spouse coverage under SBP.  Should you have any further questions, please contact us at…."

	f.  On 21 July 2009, the applicant contacted DFAS because she didn't understand the letter she received, dated 13 July 2009.  She was told she had to send a death certificate to receive the FSM's last pay.

	g.  On 24 July 2009, the applicant contacted DFAS again.  All the paperwork she faxed to DFAS was mailed back to her.  A representative informed her that the FSM had cancelled his insurance, but she was not given any clarification.  She was told that someone from the legal department would contact her with a response within two weeks.  She did not receive a response from DFAS so she contacted her congressman.  

9.  In a letter, dated 14 February 2011, the DFAS responded to a congressman on behalf of the applicant and stated:

	a.  the FSM elected SBP coverage for the applicant on 1 May 1993.  After their divorce on 15 February 2000, the applicant lost her eligibility for SBP spouse coverage.

	b.  the FSM did not elect to cover the applicant as a former spouse SBP beneficiary.  There is no provision in the SBP that makes former spouse coverage an automatic benefit.

	c.  their office did not receive a deemed election from the applicant or a voluntary election from the applicant within 1 year after the original divorce decree was signed and dated by the judge.  As a result, the applicant is not entitled to a monthly SBP annuity.

	d.  it was advised that a possible avenue of relief for the applicant was for her to petition the Army Board for Correction of Military Records.  

10.  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.

11.  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.
12.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members and reservists.

13.  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.

14.  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 1 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.

15.  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 contentions in regard to her being misinformed about her pending survivor benefits by DFAS are acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case. 

2.  The FSM retired on 1 May 1993 and he elected to participate in the SBP for spouse coverage.  He was married to the applicant at that time.

3.  The FSM and applicant were divorced on 15 February 2000.  

4.  SBP elections are made by category, not by name.  The divorce decree is not available and the FSM's service record is void of evidence which indicates the FSM voluntarily elected or the applicant submitted a written request to DFAS to change the SBP coverage from spouse to former spouse within 1 year of their divorce.


5.  The FSM married L----- M------- on 3 May 2008 and he was married to her at the time of his death.  By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage.

6.  Since the lawful beneficiary of the FSM's SBP is his current spouse, and in the absence of a timely deemed election (even if the court awarded her the SBP), the ABCMR cannot take away the current spouse’s right to the SBP without her irrevocable consent or due process of law.  Therefore, it would be inequitable to grant the applicant’s request in this case.

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 that 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)                                         AR20110011434



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ABCMR Record of Proceedings (cont)                                         AR20110011434



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