IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110024111 


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 record of her deceased former spouse, a former service member (FSM), be corrected to show he changed to his Survivor Benefit Plan (SBP) election to "former spouse" upon their divorce.  

2.  The applicant states the FSM's SBP election should be changed from spouse to former spouse in order to allow her to receive the SBP annuity due based on the death of the FSM.  She states she was named as the beneficiary for the FSM's SBP and their divorce decree indicates this SBP protection would continue for her as a former spouse.  She further states the FSM’s intent for this SBP protection to stay in force is evident by the fact he continued to pay SBP premiums through the date of his death.  

3.  The applicant provides the documents identified in her application, including the divorce decree and settlement agreement, in support of the request. 

CONSIDERATION OF EVIDENCE:

1.  On 3 July 1963, the applicant and FSM were married in Bell County, Texas.  

2.  On 30 November 1968, the FSM was honorably retired, and on 27 January 1974, he completed an SBP election for full Spouse and Children SBP protection and named the applicant, his spouse at the time, as the spouse beneficiary.  

3.  On 15 July 1977, the applicant and FSM completed a settlement agreement in the Superior Court for the County of Whitfield and State of Georgia which stipulated, in pertinent part, that the FSM currently made payments on an annuity contract (SBP) whereby a percentage of his monthly retirement pay from the United States Government would continue at his death unto the applicant and the minor children of the marriage.  

4.  In the settlement agreement, the FSM also agreed to maintain such annuity (SBP) contract or payments in full force and effect so that in the event of death of the FSM, the applicant and minor children would draw such benefits and percentage of pension as is provided.  On 7 March 1978, the applicant and FSM were divorced under the terms of the settlement agreement.

5.  On 20 December 2008, the FSM died at the age of 80.  The death certificate shows his status as divorced.  

6.  On 23 December 2010, the Defense Finance and Accounting Service (DFAS) notified the FSM’s daughter that those SBP premiums were being collected from the FSM’s retired pay through the date of his death.  

7.  The FSM's daughter provides a statement indicating she had been informed by her father that he had placed her mother, the applicant, as the beneficiary for his SBP annuity.  She also provides a Retiree Account Statement for the FSM, dated 2 January 2008, which includes SBP coverage data that has his spouse's date of birth listed and this DOB is the applicant's DOB.  

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  The USFSPA contains strict jurisdictional requirements.  The State court must have personal jurisdiction over the FSM by virtue of the FSM’s residence in the state (other than pursuant to military orders), domicile in the State, or consent.

9.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  Insurable interest option was authorized for beneficiaries following divorce if previously covered under the "spouse" option.

10.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions. 

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the FSM’s record to show a former spouse SBP election has been carefully considered.  The FSM did not formally change his SBP election to cover the applicant (and could not since the law did not offer such coverage until years later).  However, there are equity considerations given it appears the FSM's intent was to continue to provide SBP coverage for the applicant after their divorce as evidenced by his continued payment of premiums through his death. 

2.  The evidence of record confirms the applicant and FSM were divorced on 
15 July 1977, after 14 years of marriage.  The divorce decree stipulated the FSM would continue to carry SBP coverage for the applicant and, although not backed by law at the time, coupled with the FSM's continued payment of SBP premiums it demonstrates his intent to continue to provide SBP protection for the applicant.

3.  In view of the foregoing and given there is no current spouse beneficiary, it would be appropriate and equitable to correct the record to show that an SBP former spouse under insurable interest costs coverage option was elected by the FSM for the applicant when first available; that the FSM subsequently elected the former spouse under spouse costs coverage option when first available; and by providing the applicant the SBP annuity due as a result. 

4.  All premium costs for the difference between spouse coverage and insurable interest costs will be borne by the applicant.  

BOARD VOTE:

___X____  ___X ___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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:

* showing the FSM elected former spouse SBP coverage for the applicant under insurable interest provisions costs in September 1983, when Public Law 98-94 was enacted
* showing the FSM elected former spouse SBP coverage for the applicant under spouse provisions costs in November 1985, when Public 
Law 99-145 was enacted
* providing the applicant the SBP annuity due since the day after the date of the FSM's death 

2.  Any additional premium costs associated with the difference between spouse coverage costs and insurable interest coverage costs for the period from September 1983 to November 1985 will be borne by the applicant. 



      ____________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)                                         AR20110024111



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ABCMR Record of Proceedings (cont)                                         AR20110024111



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