BOARD DATE: 13 March 2012
DOCKET NUMBER: AR20110013087
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, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage.
2. The applicant states that she married the FSM on 7 October 1982 and they divorced on 14 September 2001. She goes on to state that he left her as survivor for his survivor benefits which was an agreement between them and she needs to be restored as his survivor in order to receive the benefits she is due. She further states that the FSM intended her to receive the benefits and neither of them knew of the requirements to file a special form within 1 year of the divorce. She also states that she has received his final pay and his Servicemember's Group Life insurance (SGLI); however, she has not received the SBP annuity.
3. The applicant provides a one-page letter explaining her application, a copy of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of the FSM's death certificate, a copy of her divorce decree, a copy of the FSM's will, and copies of documents related to her claim for the FSM's Veterans Group Life Insurance and unpaid pay and allowances.
CONSIDERATION OF EVIDENCE:
1. The FSM was serving in the pay grade of E-6 on 30 April 1990 when he was honorably released from active duty and was transferred to the Retired List effective 1 May 1990. He had served 20 years and 3 days of active service and he elected spouse full coverage under the SBP. He was married to the applicant at the time.
2. On 7 September 2001 the applicant and the FSM were divorced in Portland, Oregon. The divorce decree ordered the FSM to pay the applicant $350.00 per month from his Army Retired pay and made no provisions for any designation as an SBP beneficiary.
3. Information received from officials at the Defense Finance and Accounting Service (DFAS) indicates that the FSM had no SBP beneficiary since his divorce on 7 September 2001 and since there were no provisions in the divorce decree for SBP, the applicant was removed from the SBP coverage. However, the FSM had continued to pay the SBP premiums and they were refunded to his arrears of pay beneficiary (the applicant) upon his death when it was discovered that he had no beneficiary.
4. 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: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.
5. 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 of the person is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the FSM did not make a former spouse election when he divorced the applicant and given that he left her as his beneficiary and continued to pay premiums until the time of his death, it is reasonable to believe the applicant's assertion that neither the FSM or herself were aware that a former spouse election was required within 1 year of their divorce on 14 September 2001.
2. Given his continued payment of SBP premiums after his divorce, it is also reasonable to presume he believed the spouse coverage he elected under SBP at the time of his retirement was valid and that his former spouse would receive her SBP annuity.
3. Therefore, since the FSM continued to pay his premiums, since no one is currently receiving the annuity, and since the applicant was his beneficiary at the time of his death and for 19 years prior, as a matter of equity, the records should be corrected to show the FSM made a timely notification on 1 October 2001 to DFAS informing officials of his divorce from the applicant on 14 September 2001 and timely made a change to former spouse coverage under the SBP.
4. In view of the foregoing, it is in the interest of equity to correct the FSM's records 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 showing the FSM made a timely notification of his divorce from the applicant to
DFAS on 1 October 2001 and timely made a former spouse election under the SBP and that the applicant is the beneficiary of his SBP annuity.
_________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.
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