IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110012446 


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, the former spouse of a deceased former service member (FSM), requests correction of the FSM's record to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states the FSM started receiving his Army retired pay in 2000 and made monthly payments into the SBP.

	a.  She is sure the FSM was counseled on the SBP prior to retiring from the Army.  However, at the time, they were married and there was no reason to discuss how to handle his SBP if they divorced.

	b.  The applicant and FSM divorced on 17 March 2005.

	c.  The FSM filed for bankruptcy in 2005.  He had limited income thereafter; however, he continued to have SBP premiums deducted from his Army retired pay even though they were divorced.

	d.  She adds the FSM executed his Last Will and Testament on 11 July 1998 and appointed her as his personal representative.

	e.  The FSM died on 21 March 2010.  She then learned that the FSM did not update his Will after they divorced.  As a result, she was responsible for settling his personal affairs.  It was at this point that she actually learned the details of the FSM's financial difficulties and that he had not changed his SBP election from spouse to former spouse.
	f.  She acknowledges that the FSM did not change his designated SBP beneficiary from spouse to former spouse.  However, the FSM kept her listed as his beneficiary and clearly intended for her to receive the SBP annuity because he continued to have SBP premiums deducted from his Army retired pay.

3.  The applicant provides copies of:

* the FSM's discharge document
* their divorce decree
* the applicant's Personnel Qualification Record
* four Retiree Account Statements
* the FSM's Certificate of Death
* the FSM's Last Will and Testament

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 15 October 1975.  He attained the rank/grade of sergeant first class (SFC)/E-7 on 10 December 1984.

2.  A DD Form 2656 (Data for Payment of Retired Personnel) shows the FSM elected spouse only SBP coverage based on a reduced amount of retired pay ($434.00).  The FSM, the applicant, and a witness signed the form on 27 August 1997.

3.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from active duty on 31 January 2000 by reason of sufficient service for retirement.  He completed 24 years, 3 months, and 16 days of creditable active service.

4.  In support of her application, she provides.

	a.  A Court of Common Pleas of Washington County, Pennsylvania, Civil Division, Decree that shows the applicant and FSM divorced on 17 March 2005. A Marriage Settlement Agreement, dated 7 October 2003, was incorporated into the Divorce Decree.  A copy was not provided by the applicant.

	b.  Her Personnel Qualification Record, dated 1 June 2011, that shows she is currently serving as a warrant officer in the U.S. Army.  Her date of birth (DOB) is 15 June 1970 and her marital status is listed as "divorced."


	c.  Four Defense Finance and Accounting Service (DFAS) CL 7220/148 (Retiree Account Statements) pertaining to the FSM with effective dates of
23 April 2004, 2 December 2008, 24 February 2009, and 2 December 2009.

	 	(1)  The FSM's Federal Withholding Status was listed as "Married" on
23 April 2004, and "Single" on 2 December 2008 and thereafter.  They also show: 

* SBP Costs were withheld
* SBP Coverage Type:  "Spouse Only"
* Spouse DOB:  15 June 1970

	 	(2)  The applicant is also listed as the FSM's "wife" and a beneficiary for arrears of pay on the retiree account statements.

	d.  West Virginia, Department of Health and Human Resources, Bureau for Public Health, Certificate of Death, that shows the FSM died on 21 March 2010. It also shows he was divorced at the time of his death.

	e.  The Last Will and Testament of the FSM that shows he appointed the applicant (Gina M. S------) as his personal representative concerning his Will.  It also shows he bequeathed his entire estate and all property to the applicant.

5.  During the processing of this case, DFAS was asked to verify information relevant to the FSM's SBP.  A DFAS official confirmed that there was no divorce decree or deemed election on file.

6.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

7.  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.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

8.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's record should be corrected to show his participation in the SBP with former spouse coverage because the FSM failed to change the designated beneficiary category from spouse to former spouse SBP coverage within 1 year of the date of their divorce.

2.  Records show on 27 August 1997, the FSM elected SBP with spouse coverage (reduced amount).  He retired from active duty on 31 January 2000.

3.  The applicant and FSM divorced on 17 March 2005.

	a.  The evidence of record shows the FSM maintained SBP spouse coverage following his divorce from the applicant, with his former spouse's DOB listed as that of his designated beneficiary for SBP benefits.

	b.  The FSM began receiving Army retired pay in February 2000 and he had SBP costs deducted from his retired pay until his death on 21 March 2010.

	c.  There is no evidence the FSM remarried after 17 March 2005 and records show the FSM was divorced at the time of his death.

4.  DFAS confirmed that an SBP annuity has not been paid to the applicant because neither the FSM nor the applicant notified DFAS within 1 year from the date of their divorce to change the FSM's SBP beneficiary to former spouse.

5.  It is logical to presume that if the FSM did not intend for his former spouse to receive the SBP annuity, he would have notified DFAS to stop deducting SBP costs from his Army retired pay after they divorced.  However, the evidence of record shows the FSM did not do so.

6.  Despite the fact that the FSM failed to take appropriate action to effect a change in his SBP election to former spouse, the applicant's request merits 


favorable consideration.  Therefore, the FSM's records should be corrected to show his SBP beneficiary category was changed from spouse to former spouse coverage, effective 18 March 2005, resulting in the applicant's entitlement to receive SBP payments based on former spouse coverage beginning the day after the FSM's death.

BOARD VOTE:

___X____  ___X____  ____X __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the FSM's SBP beneficiary category was changed from spouse to former spouse coverage effective 18 March 2005.

2.  As a result of the above correction, DFAS should pay the applicant an annuity based upon the FSM's participation in the SBP with former spouse coverage, reduced annuity base amount, retroactive to 22 March 2010, the day after his 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)                                         AR20110012446



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ABCMR Record of Proceedings (cont)                                         AR20110012446



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