IN THE CASE OF:	  

		BOARD DATE:	   24 July 2012

		DOCKET NUMBER:  AR20110024255 


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 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 that her divorce decree named her as the beneficiary of the FSM’s SBP account; however, she became mentally ill and could not conduct her business adequately and no action was taken by the FSM to change the account to former spouse coverage.  Accordingly, she is requesting that she be granted a waiver of the time limit required to change the election to former spouse, and that she be granted an SBP annuity.

3.  The applicant provides a one-page letter explaining her application, a letter from a physician, the FSM’s SBP election, her marriage license, birth certificate of her daughter, the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty), the FSM’s death certificate, and her divorce decree.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 10 March 1975 and he remained on active duty through a series of continuous reenlistments.

3.  The FSM married the applicant on 21 September 1985.

4.  The FSM was promoted to the pay grade of E-8 on 1 December 1992.  On
31 March 1995, he retired and was transferred to the Retired List effective 1 April 1995.  He had served 20 years and 21 days of active service and he elected full spouse and children coverage under the SBP.

5.  On 17 March 2000, the applicant was granted a divorce from the FSM in Douglas County, Nebraska.  The divorce decree provided states that the applicant would pay the premiums for the SBP and that both parties (the applicant and FSM) would execute the documents necessary to ensure survivor benefits to the applicant and that failure on the FSM’s part to complete the necessary forms to ensure the SBP for the benefit of the applicant would render his estate personally liable for such amounts due. 

6.  The FSM died on 5 February 2002 at the age of 50.  The Defense Finance and Accounting Service (DFAS) indicates the FSM was not paying premiums for SBP coverage at the time of his death, he had not paid the premiums for some time prior to death, and there was no record of a former spouse election.  There was also no record of the FSM being remarried. 

7.  The letter provided by the applicant from a physician indicates that she was hospitalized from 14 – 23 October 2000 and that her current diagnosis is Bipolar Disorder, Mixed, with psychotic features.

8.  SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members.  As a Federal Government insurance program, mainly subsidized by participant premiums, it is strictly governed by Federal Statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is encumbent upon individuals to timely apply to participate.
9. Public Law 92-425, the SBP, enacted 21 September 1972, 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.  

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

11.  Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 within1-year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  Neither the FSM nor the applicant took the required actions to change the FSM's SBP coverage to former spouse coverage within the 1-year time limit established by law and it appears the FSM stopped paying the premiums after his divorce.   

2.  The divorce decree directed both parties to take the necessary action to change the SBP election in order for the applicant to be eligible for an SBP annuity and it placed the burden of paying the premiums on the applicant.

3.  However, the evidence submitted by the applicant shows she suffers from a mental disorder and that she was hospitalized for that disorder during the 
1-year period in which the former spouse election was required to be changed and it appears the FSM did not comply with the court order and did nothing to ensure that the election was changed. 
4.  The intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed against the applicant by the FSM in this case.  

5.  Since it appears that the FSM was not paying premiums at the time of his death, it would be appropriate to have those premiums paid out of the annuity before paying the annuity to the applicant.

6.  In view of the facts in this case, the FSM’s records should be corrected to show the applicant made a timely request for a deemed election of former spouse SBP coverage consistent with the terms of her 2000 divorce decree.

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 applicant made a request for a deemed election on 1 April 2000 and that the request was received and processed by the appropriate office in a timely manner;

   b.  advising the applicant that DFAS will be instructed to collect any SBP premiums due; and

   c.  paying the applicant the SBP annuity retroactive to the day after the FSM’s 
death, subject to repayment of the premiums.


      _______ _   _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)                                         AR20110024255



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ABCMR Record of Proceedings (cont)                                         AR20110024255



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