IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110024560 


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 husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse and that she be provided an SBP annuity based on his death.  

2.  The applicant states she and the FSM were married for 21 years and when he retired from the Army in 1977, he elected “Spouse” SBP.  She indicates they divorced in 1981 and the FSM continued to pay his SBP premiums through his death because he wanted her to receive the annuity.  She further indicates the FSM told her and their children that she would receive the SBP annuity for the rest of her life.  She claims the FSM did not know he had to contact anyone to change the election to former spouse subsequent to their divorce.  She further states the FSM was never counseled regarding a change in the SBP election and in fact when her former husband retired it was not an option.  The applicant now requests she be paid the SBP annuity at this time.  

3.  The applicant provides a Divorce Decree and a Defense Finance and Accounting Service (DFAS) letter in support of her request.  

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 record shows the FSM initially enlisted in the Regular Army on 
12 February 1957.  

3.  The FSM and applicant were married on 23 December 1959.

4.  The FSM’s Official Military Personnel File (OMPF) contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 30 December 1977, completed during the FSM’s retirement processing.  This document confirms the FSM elected full “Spouse and Children” SBP coverage.  The applicant was named as his spouse on the form.  

5.  On 31 December 1977, the FSM was honorably retired in the rank of sergeant first class (SFC), after completing 20 years and 12 days of creditable active service.  

6.  On 21 December 1981, the FSM and applicant were divorced.  

7.  On 16 May 2008, DFAS notified the FSM that as of 1 October 2008 his SBP premiums would be terminated and his annuity coverage would remain in effect at no further cost to him.  

8.  On 7 July 2010, the FSM died while living in Germany.  His son is identified as the next of kin on the death certificate and provides a statement confirming his father, the FSM, did not remarry after his divorce from his mother, the applicant.  

9.  A review of the DFAS record shows the original “Spouse and Children” election was still on file identifying the applicant as spouse.  DFAS had no copy of a divorce decree or a former spouse election. 

10.  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.

11.  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.

12.  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.

13.  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 record of the FSM to show he changed his SBP election from spouse to former spouse and that she be provided the SBP annuity has been carefully considered.  Although the FSM failed to change his SBP election at the time of his divorce, there are equity considerations in this case that support relief. 

2.  The evidence of record confirms the FSM elected SBP coverage for his spouse, the applicant, upon his retirement.  It further shows although he never remarried, he continued to pay SBP premiums through October 2008, when he was informed by DFAS his premiums were paid up and his annuity would remain in force.  

3.  Given the applicant was still the identified spouse beneficiary at the time this paid up premium notification was made to the FSM in 2008, it is reasonable to 
presume the FSM believed his former spouse was still covered under the SBP and would receive the annuity upon his death.

4.  The FSM and applicant were married for over 20 years and the FSM continued to pay SBP premiums until they were paid up in 2008 in spite of not remarrying.  Given these facts coupled with the fact the FSM resided overseas subsequent to his retirement, it is reasonable to presume the FSM intended to continue SBP coverage for the applicant after their divorce but was unaware of the requirement to change his election to former spouse.  As a result, it would be 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 of these election changes.  

5.  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 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 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)                                         AR20110024560



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024560



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1