IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110020624 


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, as the former spouse of a deceased former service member (FSM) that she be designated as the beneficiary of the FSM's Survivor Benefit Plan (SBP).   

2.  The applicant states, in effect:

   a.  She was determined to be ineligible for SBP by reason of failure to provide the Defense Finance and Accounting Service (DFAS) a deemed election.  She presumed that award of SBP by a legal divorce decree entitled her to all SBP provisions.  There was no official notification of SBP ineligibility and SBP premiums continued to be withheld from the FSM's pay until his death in February 2011.
   
   b.  She believes the previous DFAS decision denying her an SBP annuity should be reversed.  The FSM in good faith paid premiums from his military retired pay so that she would be entitled to monthly benefits should he precede her in death.
   
   c.  The applicant and the FSM agreed at the time of their divorce that all matters had been resolved and she would remain the beneficiary of his SBP.  

3.  The applicant provides:

* Marriage License
* Divorce Decree
* FSM’s Certificate of Death
* Letters written to DFAS and the Army Review Boards Agency by the applicant's attorney

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard on 1 December 1948. 

2.  The applicant and the FSM were married on 1 March 1957.

3.  On 23 July 1978, the FSM completed and signed a DA Form 4240 (Data for Payment for Retired Army Personnel).  In Part III (SBP) he stated he was married, had dependent children, and wanted an annuity for "spouse only" under the SBP based on the full amount of retired pay.  He named the applicant as his spouse.  This form was witnessed on the same day.

4.  The FSM was separated from the ARNG on 28 July 1978 and retired on 3 October 1991.  

5.  The applicant and the FSM's divorce decree, dated 9 August 2002, stipulated the FSM would continue SBP coverage for the applicant.  Both the applicant and the FSM consented to the terms of the divorce. 

6.  There is no evidence the FSM contested the court order pertaining to payment of SBP premiums from his retired pay.

7.  The FSM died on 18 February 2011.  His death certificate stated he was divorced and the applicant is listed as the informant and his former spouse.  

8.  In a letter to the Army Review Boards Agency, dated 20 June 2011, an attorney at law stated:

   a.  The applicant was married to the FSM for over 45 years and raised children while staying home.  Her only source of income was the FSM's military employment.  The only pension both he and she counted on was this one.  When they divorced in 2002 their intention was to ensure that the applicant continued to receive benefits in the event she survived the FSM.

   b.  In fact, she hired her divorce attorney with that in mind.  She wanted to make sure everything was done correctly so that she would be protected.  She thought once the divorce was finalized and the decree included the SBP provision she would not need to worry about it anymore.  
   
   c.  It is her understanding that monies were paid by the FSM in order to continue to secure SBP for the applicant.  It was not until 9 years after the FSM passed away that the applicant was informed she would not be receiving SBP benefits.  She was never told by her attorney that she had to make an election to receive SBP benefits.  Although the decree included provisions for SBP this provision has been rendered meaningless.

9.  In an undated letter, DFAS advised the applicant that premiums were being deducted from the FSM's retired pay as required by the original election at the time of retirement.  

10.  In a letter, dated 12 September 2011, DFAS advised a Member of Congress in response to an inquiry pertaining to the applicant's that:

   a.  There is no Federal law that automatically entitled a former spouse to a portion of his/her ex-spouse's military retired pay.  Since the FSM was now deceased and no longer entitled to receive military retired pay, the applicant did not qualify for direct payment under the Uniformed Services Former Spouses'' Protection Act (USFSPA).  Therefore, they were unable to issue her any payments under the USFSPA.  The entitlement to retired pay terminated on the date of the retiree's death.
   
   b.  They determined the applicant was entitled to the FSM's arrears of pay (which includes all pay due to the member at the time of death) and monies that were due as a result of over payment of former spouse SBP premiums.  Both payments were mailed to the applicant's home address.  
   
   c.  Upon his retirement on 3 October 1991, the FSM elected SBP spouse coverage.  Their records reflected the FSM and the applicant were divorced on 9 August 2002.  The FSM did not make a written election to cover the applicant, as his former spouse SBP beneficiary nor did the applicant deem a former spouse SBP election.  Therefore, she was ineligible to be the FSM's former spouse SBP beneficiary and also not entitled to receive an SBP annuity from his military retired pay account.  
   
   d.  The applicant had the option to petition the Army Board for Correction of Military Records to request that she be designated "the former spouse" and beneficiary of the FSM's SBP annuity.  She would also need to contact TRICARE (military health care plan) directly regarding her entitlement to medical benefits.

11.  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.  
12.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

13.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

14.  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 contention that she should be designated as the annuitant of the FSM's SBP was carefully considered.

2.  The evidence of record shows the FSM was retired on 3 October 1991 and elected SBP spouse coverage.  The FSM and the applicant were divorced on 
9 August 2002.  It appears he did not notify DFAS of his divorce or otherwise attempt to suspend his coverage.  He died on 18 February 2011.

3.  There is no evidence the FSM attempted to change his SBP election from spouse to former spouse prior to death.  The FSM continued to pay spouse premiums, and was divorced at the time of death.  Quite clearly, he intended to honor the terms of his divorce.  

4.  Considering the facts and circumstances of this case, and since there is no widow with a vested interest to defeat the applicant's equitable interest, it would now be appropriate as a matter of fairness and equity to correct the FSM's records to show he requested an SBP election to former spouse coverage within 1 year of his divorce from the applicant.

5.  DFAS has stated they have already refunded the SBP premiums to the applicant.  Those premiums will have to be paid back to DFAS.  

6.  In view of the foregoing, the FSM’s records should be corrected 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:

	a.  showing the FSM changed his SBP election from "spouse" to "former spouse" coverage within 1 year of their divorce in August 2002 and his request was timely received and processed by the appropriate DFAS office; 

	b.  auditing the FSM's account and collecting all outstanding SBP premiums due; and

   c.  paying the applicant an SBP annuity retroactive to the day after the FSM's 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)                                         AR20110020624



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ABCMR Record of Proceedings (cont)                                         AR20110020624



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