IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110017562 


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 reinstatement of her beneficiary status under the Survivor Benefit Plan (SBP) that was granted to her by her former spouse, a deceased former service member (FSM), in their divorce decree.

2.  The applicant states:

* she and the FSM gave the best years of their lives to the Army
* the only reason she divorced the FSM is because of what Operation Desert Storm did to him; he came back a different man
* their divorce decree clearly stipulated that she was to be the beneficiary under the SBP at the FSM's expense
* the FSM paid SBP premiums from his retired pay each and every month
* in spite of their divorce, she and the FSM spoke at least once a week
* when the FSM knew he was dying he told her, "you know that you will receive my retirement benefits once I am gone"
* after the FSM's death, she paid for his funeral and made all of the arrangements
* the Defense Finance and Accounting Service (DFAS) informed her that she did not qualify for SBP because she did not deem her election within 1 year of the date of their divorce
* shame on the Army for not paying her SBP just because the FSM's documentation was not submitted to change the SBP election to former spouse
* 
she served in the military as well and never thought she would see the day when veterans and their families would be treated this way

3.  The applicant provides:

* The FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a State of Georgia Separation Agreement
* a State of Georgia Final Judgment and Decree of Total Divorce
* the FSM's Retiree Account Statements, effective 11 May 2005 and 2 December 2010
* the FSM's DD Form 2656 (Data for Payment of Retired Personnel)
* three letters from DFAS to the applicant
* the FSM's State of Georgia Death Certificate
* four MoneyGram receipts showing she wired money to the FSM and their daughter

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army on 19 August 1980. 
He and the applicant were married on 12 October 1984.

2.  The FSM served through multiple reenlistments in a variety of stateside and/or overseas assignments.  He attained the rank/grade of sergeant/E-5.

3.  The FSM completed a DD Form 2656, dated 13 June 1995, in connection with his pending retirement wherein he indicated he was married to the applicant.  The FSM elected spouse-only SBP coverage based on the full amount.

4.  On 31 August 1995, the FSM retired under the provisions of the Voluntary Early Retirement Program and he was placed on the Retired List effective 1 September 1995.

5.  On 2 April 1996, the FSM and the applicant entered into a separation agreement.  Item 8d of their agreement stipulates, "The Husband hereby agrees to voluntarily name the Wife as beneficiary under the provisions of the SBP and agrees to have deducted from the Husband's retired pay an amount which will ensure that the Wife's survivor benefits will not be less than 55 percent of the Husband's gross government retired pay (35 percent after the Wife becomes eligible to receive Social Security retirement payments) (or entitlement thereto) before deduction of the Wife's share.  This provision will remain in effect regardless of the Husband's or Wife's future marital status."

6.  On 12 February 1998, the Superior Court of Richmond County, State of Georgia, ordered and decreed that the marriage contract between the FSM and the applicant be set aside and dissolved.

7.  There is no evidence the FSM notified DFAS of the divorce or changed his SBP coverage from spouse to former spouse coverage.  Additionally, there is no indication the applicant notified DFAS of her divorce or sought a deemed election.

8.  The FSM's January 2002 Retiree Account Statement shows spouse SBP coverage and the corresponding SBP premiums.  The applicant's date of birth is listed on this statement.

9.  The FSM's 11 May 2005 and 2 December 2010 Retiree Account Statements show he continued spouse SBP coverage and paid the corresponding SBP premiums.  The applicant's date of birth is listed on these statements.

10.  The FSM died on 11 May 2011.  His death certificate indicates he was divorced at the time of his death.

11.  On 16 May 2011, DFAS sent a letter to the applicant extending their sincere condolences on the death of the FSM and offering their assistance in settling the retired pay account as quickly as possible.  DFAS acknowledged that SBP premiums were being deducted from the FSM's retired pay as required by his original election at the time of retirement.  In order to process the closing of the account, DFAS asked the applicant to forward copies of their divorce decree and the FSM's death certificate.

12.  On 9 August 2011, DFAS informed the applicant that in order for a former spouse to be eligible for the SBP, the former spouse has to be awarded the SBP in the divorce decree and she or her attorney would have to deem her election for Former Spouse SBP coverage within 1 year of the date of divorce.  Records on file at DFAS reflect the FSM's SBP election was for spouse coverage and DFAS did not receive a deemed election from the applicant within 1 year of her divorce as required by law.  As a result, her application for the SBP was denied.

13.  The applicant provides documents showing DFAS paid her the FSM's retired pay in arrears in the amount of $3,021.25.

14.  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.
15.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

16.  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.

17.  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.

18.  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 evidence of record shows the FSM elected SBP spouse coverage upon retirement.  He and the applicant entered into a separation agreement on 2 April 1996.  The separation agreement was incorporated into their dissolution of marriage in February 1998.

2.  Their separation agreement stipulated the applicant would be the designated beneficiary of his SBP.  However, there is no indication the FSM submitted the necessary forms to change his SBP election from spouse to former spouse within 1 year of their divorce.  The applicant also failed to request a deemed election for former spouse coverage within 1 year of their divorce.

3.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of death, any SBP benefits would be paid to the beneficiary in effect at the time of death (his new spouse in the event he had remarried, not his former spouse) if they had been married for at least 1 year.

4.  The FSM designated the applicant as beneficiary and continued to pay SBP premiums until his death.  The evidence clearly shows the FSM's and applicant's divorce decree stipulated the applicant would remain the beneficiary of the FSM's SBP regardless of their future marital status.  The FSM never remarried so there is no other potential beneficiary who could contest the applicant's entitlement to SBP.  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 the evidence presented is 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 SBP election from spouse to former spouse on 12 February 1998 (the date of their divorce) and 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, if any.



      _____________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)                                         AR20110017562



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ABCMR Record of Proceedings (cont)                                         AR20110017562



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