IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110020950 


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 the records of her deceased father, a former service member (FSM) be corrected to show: 

* his marital status be changed from "married" to "divorced"
* "former spouse" Survivor Benefit Plan (SBP) coverage be deemed to her mother as stipulated in their divorce decree

2.  The applicant states:

* Her father did not report the divorce due to religious reasons (his faith does not recognize divorce)
* He also did not report the divorce because he wanted his spouse, the applicant’s mother, to continue receiving military spousal benefits
* He listed her mother as the beneficiary of his service member’s group life insurance (SGLI) plan
* He signed the divorce decree and awarded her the SBP
* He intentionally and without dispute paid SBP premiums for over 20 years until his death

3.  The applicant provides:

* 1992 FSM’s Separation Agreement and Final Judgment of Divorce
* 2010 FSM’s Death Certificate
* 2011 DD Form 2656-10 (SBP/Reserve Component SBP Request for Deemed Election)
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the Regular Army on 3 December 1968 and married Hxx, the applicant’s mother, on 19 April 1975.  

3.  The FSM served through multiple reenlistments or extensions, in a variety of stateside and/or overseas assignments, and he attained the rank of staff sergeant (SSG)/E-6.  

4.  On 11 October 1990, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Hxx and they had two dependent children (Txxxxx, born on X JXXX 19X5, and Jxxx (the applicant), born on X AXXXXX 19X8).  He elected spouse and dependent children SBP coverage based on the full amount. He and a Retirement Services Officer authenticated this form by placing their signatures. 

5.  On 31 October 1990, the FSM was honorably retired and placed on the retired list in his retired rank of SSG on 1 November 1990.  He was credited with completing over 20 years of faithful honorable active service.  

6.  On 25 August 1992, the FSM and his spouse, the applicant’s mother, entered into a separation agreement.  Their agreement stipulated that the FSM would maintain, as child support and subsequently at the time of their majority as spousal support, the Survivors Benefits which is available to him and which is presently maintained by him as a result of his military service and he would maintain in full force and effect the SGLI policy.

7.  On 27 August 1992, the FSM and his spouse were divorced and their separation agreement was incorporated into their divorce degree. 

8.  There is no indication that the FSM notified DFAS within 1 year of their divorce to change his SBP election to former spouse coverage.  Furthermore, there is no indication the spouse (applicant’s mother) deemed the election. 

9.  On 20 October 2010, the FSM died.  His death certificate shows his marital status as "divorced."

10.  The FSM’s pay records at the Defense Finance and Accounting Service (DFAS) show:

* He did not inform DFAS of his divorce
* He did not change SBP coverage from "spouse" to "former spouse"
* He continued to pay SBP premiums at the "spouse" coverage rate through the date of his death (children aged out)
* There is no indication he remarried
* His former spouse did not deem the election

11.  The applicant submits a DD Form 2656-10, completed by her mother on 17 October 2011, requesting to deem an election for former spouse SBP coverage.  

12.  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.

13.  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.

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

15.  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.

16.  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 one 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 that when the FSM retired in 1990, he elected to participate in the SBP, "spouse and children" coverage.  In August 1992, the FSM and the applicant were divorced.  Their divorce decree stipulated that the FSM would maintain the survivor benefit which is available to him and which is presently maintained by him as a result of his military service and he would maintain it in full force and effect the SGLI policy. 

2.  There is no indication that he informed DFAS officials of his divorce or that he changed his SBP coverage from "spouse" to "former spouse" coverage.  Additionally, there is no indication the FSM's spouse and applicant’s mother deemed the election as a former spouse within one year of their divorce.  

3.  SBP elections are made by category, not by name.  Once the applicant’s mother and the FSM were divorced, she was no longer his spouse.  Therefore, in the event of the FSM's death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse (if remarried), not his former spouse, if they had been married for at least one year.

4.  Nevertheless, there is no indication the FSM remarried; yet, he continued to pay SBP premiums until his death, which is indicative of the fact that he intended to provide an annuity for the applicant's mother’s benefit.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from "spouse" to former spouse" and, as such, his record should be corrected, as a matter of equity, to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the applicant’s mother should be paid the SBP annuity based on his death.

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 he changed his SBP coverage from "spouse" to "former spouse" on 27 August 1992
* showing his request was timely received and processed by the appropriate DFAS office
* paying the applicant’s mother and FSM's former spouse the 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)                                         AR20110020950





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ABCMR Record of Proceedings (cont)                                         AR20110020950



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