IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004042 


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 his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within
1 year of his divorce, and payment of the SBP annuity based on his death.

2.  The applicant states:

* She was never informed of the option to deem the election and even though she greatly needs the income, she was unaware that it was available to her
* Her divorce decree stipulated the FSM was to maintain and support the former spouse and imposed certain monetary conditions
* The FSM paid all required SBP premiums but he never changed the election
* She is an elderly woman who gave up her life to support her former husband's career; without the annuity she would have insufficient income to maintain basic living needs

3.  The applicant provides:

* FSM's letter to Retired Pay Operations, Indianapolis, IN, dated 1 June 1987
* FSM's death certificate
* Their divorce decree
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 June 1929 and he married his spouse, H-------e, the applicant, on 26 June 1954.

2.  He began his military career when he enlisted in the Regular Army on 2 September 1948.  He served through multiple reenlistments, in a variety of stateside and/or overseas assignments, including Belgium, and he attained the rank/grade of specialist seven (SP7)/E-7.

3.  On 31 January 1966, he executed a DA Form 1041 (Election of Options Under Retired Serviceman's Family Protection Plan) wherein he placed an "X" in the block marked "I do not desire to receive reduced retired pay in order to provide an annuity for my dependents."  He and a witness authenticated this form with their signatures.

4.  He was honorably retired on 30 June 1969 and he was placed on the retired list in his retired rank/grade of SP7/E-7.  He completed 20 years, 9 months, and 29 days of total active service.

5.  His retired pay record, now at the Defense Finance and Accounting Service (DFAS), shows he made an SBP election for "spouse" coverage on 1 January 1973.  However, a copy of this election (DD Form 1883 (SBP Election Certificate)) is not available for review.

6.  On 12 February 1985, the FSM and applicant entered into a written property settlement agreement containing provisions for the maintenance and support of the applicant and imposing certain monetary conditions on the FSM.  

7.  On 6 March 1985, the FSM and applicant were divorced.  Their written agreement was affirmed, ratified, and incorporated into their divorce decree.  Their final divorce decree stated/ordered:

* All of the FSM's net retirement pay which he received as a result of military service, after deductions, would be sent directly to the applicant
* The FSM agreed to maintain the applicant as the sole and exclusive beneficiary of his SBP monthly annuity 
* The FSM agreed to sign all documents necessary to ensure the applicant was the sole beneficiary of said benefits upon his death

8.  There is no indication the FSM notified the Retired pay office within 1 year of their divorce to change his SBP election to former spouse coverage.  Furthermore, there is no indication the applicant deemed the election.

9.  On 1 June 1987, by letter to the Retired Pay Operations, Indianapolis, the FSM notified the pay office that per his divorce agreement, dated 12 February 1986, he was obligated to designate his former spouse, H-------e, the applicant, as the sole and exclusive beneficiary of his Army SBP monthly annuity upon his death.  He added that this letter grants the pay office authority to do so.

10.  On 29 June 2011, the FSM died.  His death certificate shows he was a widower.  The name "Myrtle" is listed as his deceased spouse.

11.  On 2 April 2012, DFAS informed the Board analyst that the FSM elected spouse coverage on 1 January1973 for his wife, Myrtle.  She passed away on    6 March 1985 and was removed.  DFAS never had another election for spouse coverage.

12.  Public Law 94-496, effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.

13.  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.

14.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

15.  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.

16.  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's pay records show he made an SBP election for "spouse" coverage effective 1 January 1973.  He was married to the applicant at the time (DFAS appears to be confusing the applicant’s divorce date from the FSM with the death of the FSM’s later wife).  Years later, in March 1985, he and the applicant were divorced.  Their divorce decree stipulated that he would maintain the applicant as the sole and exclusive beneficiary of his SBP and that he agreed to sign all documents necessary to ensure the applicant was the sole beneficiary of said benefits upon his death.

2.  Although there is no indication the FSM changed his SBP election from "spouse" to "former spouse" coverage or the applicant deemed the election within 1 year of the divorce, the FSM did notify the Retired Pay Operations, in Indianapolis on 1 June 1987, that per his divorce agreement he was obligated to designate his former spouse, H-------e, the applicant, as the sole and exclusive beneficiary of his Army SBP monthly annuity upon his death and granted the pay office authority to do so.  It appears this letter was not processed as it was received outside the 1-year window.

3.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least 1 year.

4.  It also appears the FSM remarried since his death certificate listed the name "Myrtle" as his deceased spouse.  However, it is unclear when the FSM married "Myrtle" or if she ever became an eligible SBP beneficiary, i.e. married to the FSM for at least 1 year.  Additionally, according to the FSM's death certificate, she predeceased him - he is listed as a widower.  However, regardless of the length of his marriage to "Myrtle," it appears he died a widower and no one has an interest superior to the applicant's equitable interest.

5.  The FSM was required to make a former spouse election as stipulated in their divorce.  He did not do so in a timely manner, but there is no widow beneficiary.

6.  It would be equitable to correct the FSM’s record to show he changed his SBP election to former spouse coverage in a timely manner and that his request was received and processed by DFAS in a timely manner.

7.  The applicant is advised that any due SBP premiums will have to be collected.

8.  In view of the foregoing, the FSM's record should be corrected and actions be taken 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 changed his SBP coverage from "spouse" coverage to "former spouse" coverage" within 1 year of their divorce in March 1985;

	b.  showing his request was timely received and processed by the appropriate office; 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)                                         AR20120004042



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ABCMR Record of Proceedings (cont)                                         AR20120004042



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