IN THE CASE OF:	

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120000767


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 correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) annuity enrollment election from "spouse" to "former spouse" coverage within 1 year of his divorce.    

2.  The applicant states the SBP annuity was denied after the FSM's death because the FSM did not submit the necessary paperwork to change his SBP annuity beneficiary from "spouse" to "former spouse" and SBP was not specifically stated in the applicant's and FSM's divorce decree, even though he continued to pay SBP premiums until his death.  

3.  The applicant provided:

* State of North Carolina Certificate of Marriage, dated 3 November 1972
* State of Georgia Separation Agreement, dated 13 April 2007
* State of Georgia Final Judgment and Decree, dated 11 May 2007
* Defense Finance and Accounting Service (DFAS) – Cleveland (DFAS-CL) Form 7220 (Retiree Account Statement), dated 2 August 2010
* State of Georgia Death Certificate, dated 23 November 2011 (actual date of death – 17 November 2011)
* Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), dated 5 December 2011
* DD Form 2656-7 (Verification for Survivor Annuity), dated 5 December 2011
* DD Form 1173 (Department of Defense/Uniformed Services Identification and Privilege Card) 
* DFAS letter to the applicant denying her SBP annuity, dated 22 December 2007
* Applicant's letter to the Army Board for Correction of Military Records (ABCMR)

CONSIDERATION OF EVIDENCE:

1.  The FSM married his former spouse Dxxxxx, the applicant, on 26 October 1972. 

2.  After having had prior service, on 8 April 1974 the FSM enlisted in the Regular Army.  

3.  On 31 December 1995, he was honorably retired after completing 21 years,
8 months, and 20 days of honorable and faithful service.  His DD Form 2656 (Data for Payment of Retired Personnel) is not available, but he apparently enrolled in SBP and elected spouse coverage.

4.  On 9 May 2007, the applicant and the FSM were divorced.  The available record does not indicate the FSM attempted to change his SBP annuity enrollment election from "spouse" to "former spouse."

5.  On 17 November 2011, the FSM died.  His death certificate lists his marital status as divorced.

6.  On 5 December 2011, the applicant filed a claim with DFAS for the FSM's SBP annuity.  On 22 December 2011, DFAS denied her claim on the grounds that the FSM failed to change his SBP annuity enrollment election to "former spouse" within 1 year of his divorce, and the applicant failed to submit her divorce decree and request for a deemed election within 1 year of her divorce.

7.  The applicant provides:

   a. Her State of Georgia Separation Agreement and Final Judgment and Decree, neither of which addresses her entitlement to the FSM's SBP annuity after his death.  

   b. The FSM's Retiree Account Statement, dated 2 August 2010, which shows he paid SBP premiums for spouse only coverage.  
   
c.  A 2-page letter to the ABCMR, which addresses her and the FSM's considerations in not addressing the SBP in their divorce documents.  She states the FSM kept his SBP annuity premiums current until his death.  She also contends that if the FSM had not wanted her to have the SBP annuity he would have stopped paying for it.  She requests the SBP annuity to assist family members in paying for the FSM's burial expenses.  Lastly, she notes that neither she, nor the FSM, remarried following their divorce. 

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  Elections are made by category, not by name (emphasis added).

9.  Public Law 97-252, dated 8 September 1982, established SBP coverage for former spouses of retiring members.

10.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members, including Reservists.

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.

12.  Title 10, U. S. Code, section 1448(b)(3) permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit.  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 contends the FSM's records should be corrected to show he changed his SBP annuity enrollment election from "spouse" to "former spouse" coverage within 1 year of their divorce.

2.  The FSM and the applicant were married on 26 October 1972 and were divorced on 9 May 2007.  The FSM elected SBP coverage for his spouse at the time of retirement; however, there is no evidence he changed his election to "former spouse" coverage following his divorce.  

3.  It was Congress' intent in establishing SBP to provide for those spouses who supported the military member during his or her military career.  After their divorce on 9 May 2007, 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.

4.  Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, and as a matter of equity, it would be appropriate to correct his records to show he changed his SBP annuity enrollment election from "spouse" to "former spouse" coverage within 1 year of his divorce, and pay the applicant the SBP annuity.  

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

   a. showing the FSM submitted the appropriate request to change his SBP election from "spouse" to "former spouse" within 1 year of his divorce on 9 May 2007;

   b. showing his 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.




      __________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)                                         AR20090013464



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ABCMR Record of Proceedings (cont)                                         AR20120000767



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