BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110014744 


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 he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states she was married to the FSM from 1968 to 2003.  She offers that their divorce decree addressed her entitlement to the SBP and required her to pay the monthly premiums.  She maintains the FSM paid the monthly SBP premiums, but she was required to reimburse him, which she did.

3.  She provides the following:

* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 10 April 2011
* Divorce decree
* Death certificate
* DD Form 2656-7 (Verification for Survivor Annuity)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Defense Finance and Accounting Service (DFAS) response to the applicant's attorney with a copy of DD Form 2293 (Application for Former Spouse Payment from Retired Pay) 
* Letter from attorney and FSM's Retiree Account Statement (RAS)
* Copy of check, dated 18 May 2004
* Two letters from FSM


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 9 August 1966 and was retired on 31 May 1987.  He apparently made an SBP election for spouse coverage on an unknown date.

2.  On 1 April 2003, the FSM and the applicant divorced.  The "Order for Payment of Military Retirement Benefits" was entered on 23 September 2003 as a part of the original divorce decree.  Paragraph 6 of the order states the applicant shall remain as the irrevocable beneficiary to the SBP portion of the FSM's military retirement.  "If there is a cost to maintain the SBP, wife shall be responsible for such cost either by paying that amount directly, or having that portion held out of her one-half share of the retirement benefits."

3.  On 15 October 2003, DFAS informed the applicant's attorney that his request, on behalf of the applicant, for payment of a portion of the FSM's retired/retainer pay could not be approved.  DFAS stated the applicant must complete a 
DD Form 2293.  On 29 October 2003, the applicant completed the form.

4.  On 17 May 2004, the applicant's attorney provided her a copy of the FSM's RAS, effective 2 January 2004.  The statement shows the FSM had SBP coverage for spouse only, at a cost of $94.69.  

5.  A copy of a check paid to the FSM from the applicant, dated 18 May 2004, indicated that she paid him $473.45 for 5 months of SBP premiums.  Additionally, in the two letters from the FSM, he indicated that he was paying the applicant $226.25 monthly as part of her portion of his retirement.  In August 2005, the FSM said the applicant would receive an allotment from his retirement.  The FSM stated the following regarding SBP premiums:

* April 2005, the applicant sent him a check in the amount of $45.25
* May 2005, he deducted $139.94 
* June 2005, he deducted $139.94

6.  Indiana State Department of Health, Certificate of Death, shows the FSM died on 16 August 2010 and he was divorced at the time of his death.  

7.  In the processing of this case, the Board's staff contacted DFAS.  DFAS informed the Board's staff their records indicated that the FSM and applicant divorced on 1 April 2003.  DFAS stated all the SBP premiums were refunded to the FSM's children through arrears of pay.
8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

9.  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.

10.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected to participate in the SBP for spouse only when he was married to the applicant.  The applicant and the FSM were divorced on 1 April 2003, but he continued to pay into the plan.  On
23 September 2003, an Order for Payment of Military Retirement Benefits was entered as a part of the original divorce decree.  In this agreement, the applicant was to remain the beneficiary of the FSM's SBP.  Additionally, she was responsible for the cost of the SBP and could either pay it directly or have the cost of SBP withheld from her share of the FSM's retirement.

2.  The evidence of record further shows the applicant did make payments towards the FSM's SBP as agreed upon in the divorce decree.  However, at the time of his death, there was no deemed election on file and DFAS refunded the premiums collected after their divorce to the FSM's children.  Therefore, it appears that had the FSM and/or the applicant known a deemed election was required they would have taken the proper actions to ensure she remained the beneficiary on his SBP.

3.  As such, it would be equitable and just to correct the FSM's records to show he voluntarily converted his SBP spouse coverage to former spouse coverage in a timely fashion.



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 made a voluntary change in election from spouse to former spouse on 1 April 2003 and that the request was received and processed by the appropriate office in a timely manner and

	b.  paying the applicant the SBP annuity retroactive to the day after the FSM's death minus applicable premiums due.



      _______ _   _______   ___
       	   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)                                         AR20110014744





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