IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20110025162 


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, the former spouse of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage and payment of any SBP annuity she is entitled to receive.  In addition, she would like to be advised of any life insurance policies that may list her as the FSM's beneficiary.

2.  The applicant states that on 2 March 2009 she divorced the FSM and he subsequently passed away on 29 September 2011.  At the time of the divorce, the judge ordered that she would remain the sole beneficiary of the FSM's SBP annuity.  After the FSM passed away from cancer, she contacted the Defense Finance and Accounting Service (DFAS) to receive the SBP annuity; however, she was told either she or the FSM were supposed to notify them within 1 year of the entry of the judgment.  She states she and the FSM were unaware of the requirement and this simple error should not be held against her.

3.  The applicant provides:

* a self-authored statement
* Georgia Certificate of Death
* 4-page Judgment of Dissolution of Marriage 


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 27 April 1978.  He and the applicant were married on 1 December 1994.

2.  On 1 May 2002, the FSM was retired by reason of sufficient service for retirement.  A review by DFAS of the applicant’s military pay record indicates he elected spouse only SBP coverage.

3.  The applicant and the FSM were divorced on 2 March 2009.  The SBP is mentioned in the settlement.  The judgment states "with regard to respondent’s U.S. Military retirement survivor benefit, respondent shall name petitioner as his sole survivor and respondent shall not remove, replace, nor add any other person than petitioner to this benefit."

4.  The FSM’s service record does not indicate he submitted a request to change his SBP coverage from spouse to former spouse.

5.  The FSM died on 29 September 2009.  His death certificate indicates he was divorced at the time of his death.

6.  In an undated letter to the applicant, DFAS states a review of the FSM’s military retired pay record reflects he did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by the applicant.  Therefore, she is not entitled to receive an annuity under the SBP.

7.  The applicant provides a self-authored statement claiming the FSM told her that she was listed as the beneficiary on his life insurance policy.  The applicant received information from DFAS that shows there is no life insurance policies held by the FSM through the U.S. government.

8.  DFAS verified the FSM had been paying SBP premiums until he died.

9.  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.

10.  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.

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

12.  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 1 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.

13.  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 contentions were carefully reviewed.  There is sufficient evidence in which to grant the requested relief.

2.  It was Congress' intent in establishing the SBP to provide for those spouses who supported the military member during his or her military career.  After their divorce in March 2009, the FSM continued to pay SBP spouse coverage premiums until his death even though he was not required to do so.  His death certificate shows his marital status as divorced.

3.  Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant and that he was required to do so per the terms of their divorce, it would be equitable to correct his records to show he changed his SBP spouse coverage to former spouse coverage in a timely manner and that she be paid the SBP annuity.  

4.  With regard to any of the FSM’s life insurance policies that may list the applicant as beneficiary, this issue is not within the purview of the ABCMR.  The ABCMR is not an investigative body; however, there are several organizations throughout the country that assist veterans and family members.  The applicant is advised to contact the local and/or regional chapter of the Department of Veterans Affairs, Veterans of Foreign Wars, The American Legion, or any veteran services organizations to assist in this endeavor.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X ___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing she made a request for a deemed election of former spouse SBP coverage within 1 year of her divorce on 2 March 2009;

	b.  showing her request was received by DFAS and processed by the appropriate office in a timely manner; and

	c.  paying the applicant the SBP annuity retroactive to the day after the FSM's death.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the FSM's life insurance policies.



      _______ _   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)                                         AR20110025162



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ABCMR Record of Proceedings (cont)                                         AR20110025162



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