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		IN THE CASE OF:	  

		BOARD DATE:  20 September 2012

		DOCKET NUMBER:  AR20120003015 


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 his records to show he changed the Survivor Benefit Plan (SBP) election from spouse to former spouse so she can be paid the SBP annuity.

2.  The applicant states the records are in error because the missing documentation was mailed on or about 15 July 2002 that reflected the entire data set required to support the original SBP annuity.  This documentation is being resubmitted as a part of the application for correction.  Her attorney's records were shredded 8 years after she closed her practice.  If the certified mail receipt notification had not been received by her attorney then the file would not have been closed out.  The shredded files contained the only original or copy of the certified return receipt requested.  An affidavit from her attorney testifies to this fact.  

3.  The applicant provides:

* the FSM's Certificate of Death
* Final Decree of Divorce
* her attorney's affidavit


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 September 1952.  He completed prior enlisted service from 1 September 1972 through 2 June 1974.  He and the applicant were married on 4 December 1976.

2.  On 20 December 1977, the FSM was appointed as a Reserve commissioned officer in the rank of second lieutenant.

3.  A memorandum issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 16 September 1999, notified the FSM that he had completed the required years of qualifying service and therefore eligible for retired pay on application at age 60.  Enclosed with the notification was a DD Form 1883 (SBP Election Certificate) and detailed information about the Reserve Component SBP (RCSBP).

4.  On 2 November 1999, the FSM completed a DD Form 1883 and elected to participate in the RCSBP for spouse only coverage, full base amount, option C.  The election form listed the applicant as his spouse.

5.  He was released from the U.S. Army Reserve (USAR) Control Group (Reinforcement) and he was assigned to the Retired Reserve on 28 April 2000.

6.  The FSM and the applicant were divorced on 28 March 2002.  The divorce decree stated in part:

	a.  "All individual retirement accounts, simplified employee pensions, annuities, and variable annuity life insurance benefits in the husband's name with the exception of the portion of the U.S. Army SBP awarded to wife herein."

	b.  "The Court further finds at the present time [the applicant's name] is named beneficiary under the Armed Services Survivor Benefit Plan and that [FSM's name] election to provide the SBP benefits to [the applicant's name] should be continued and maintained in full force and effect and should not be altered or withdrawn by [FSM's name] during his lifetime."  "IT IS THEREFORE ORDERED THAT [FSM's name] shall immediately designate [applicant's name], his former spouse, beneficiary under the Armed Services SBP and that the former spouse shall continue to remain beneficiary as former spouse under that plan…."


7.  In conjunction with the divorce decree, the FSM signed an agreement to name the applicant as a former spouse beneficiary under the SBP.

8.  In a 15 July 2002 letter, the applicant's attorney indicated she mailed documents (e.g., certified copy of the final decree of divorce, letter from the applicant, and agreement to name the applicant former spouse beneficiary under the SBP) to the Defense Finance and Accounting Service (DFAS) in Denver, CO, with a return receipt request (7109 2817 3080 0000 0491).

9.  The FSM remarried on 10 March 2011.

10.  The FSM died on 13 July 2011.  His Certificate of Death indicates he was married to his current spouse, C--------, at the time of his death.

11.  The applicant provided an affidavit from her attorney who attested:

	a.  the parties negotiated in the divorce for the applicant to receive her military survivor benefits.

	b.  she sent a copy of a letter to the applicant along with copies of attachments (except a certified copy of divorce decree) on 15 July 2002.  

	c.  she sent a letter with attachments to DFAS and put the applicant's case in a special section of the file cabinet to await the return receipt card.  When the return receipt card came back to her office, she stapled it to her copy of the letter and placed the case file in the file cabinet.  If the return receipt hadn't come back, she would have known about it and would have taken action to either re-notify DFAS or to determine from DFAS whether they received the letter and its contents.

	d.  she closed her law practice in November 2003 and boxed up all her case files.  In the Spring of 2011, she took old case files, including the applicant's file, and shredded them.  Therefore, she no longer has the U.S. Postal Service return receipt to prove that DFAS received the 15 July 2002 package of documents. 

	e.  she has a draft copy of the letter, dated 15 July 2002, on her computer and the applicant also has a copy of the letter.

	f.  the necessary documentation was sent to DFAS in a timely manner along with the agreement between the spouses and a certified copy of the divorce decree to comply with all requirements under federal law for the applicant to receive the FSM's SPB upon his death.  She has no reason to believe that DFAS did not receive the documents for the reasons stated above about her practices handling certified mail.

12.  In an email, dated 23 July 2012, DFAS informed a staff member of the Board that:

* the former spouse was not eligible for SBP annuity
* no effort was made to have the FSM's SBP election changed to have former spouse covered
* no SBP annuity was currently being paid
* the FSM's spouse at the time of his death was not eligible for the annuity 

13.  His service record is void of evidence that indicates whether he continued to pay SBP premiums until the time of his death.

14.  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 family members.  Elections are made by category, not by name.

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

16.  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.

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

18.  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.

19.  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 FSM enrolled in the RCSBP on 2 November 1999 and he elected spouse coverage.  He was married to the applicant at the time of his RCSBP election.

2.  The evidence of record shows the FSM and the applicant were divorced in March 2002.  In the divorce decree, the FSM agreed to name the applicant as beneficiary of the SBP benefits.  As a result, he signed an agreement and designated the applicant as former spouse beneficiary under the SBP.

3.  The affidavit from the applicant's attorney attests she mailed the final divorce decree, a letter from the applicant, and the FSM's agreement naming the applicant former spouse beneficiary under SBP to DFAS.  However, it appears DFAS did not receive these documents within a timely manner 

4.  The FSM remarried on 10 March 2011 and he died on 31 July 2011.  His Certificate of Death indicates he was married to C-------- at the time of his death.  He died prior to reaching eligibility for retirement; therefore, no premiums were deducted from the FSM's retired pay.

5.  Since the FSM was married to his current spouse for less than 1 year, she is not eligible for the SBP annuity.

6.  Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, his former spouse, it would be equitable to correct the FSM's records to show he changed his SBP spouse coverage to former spouse coverage in a timely manner and that the applicant be paid the SBP annuity.

7.  In view of the foregoing, the FSM's records should be corrected as recommended below.


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 FSM voluntarily changed his SBP election from spouse to former spouse coverage in a timely manner;

	b.  showing the Defense Finance and Accounting Service received and processed the FSM's SBP change in a timely manner; and

	c.  paying the applicant the SBP annuity retroactive to the day following the FSM's death, less any premium payments due.



      __________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)                                         AR20120003015



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ABCMR Record of Proceedings (cont)                                         AR20120003015



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