BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120005569 


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:

The applicant, the daughter of a deceased former service member (FSM), on behalf of her mother, the FSM's former spouse, defers her request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the FSM's records be corrected to show the FSM's former spouse was the designated beneficiary of the FSM's survivor benefit plan (SBP).

2.  Counsel introduces the FSM's military service.  Counsel indicates the FSM was married to his former spouse (T____) in February 1946 and he retired in 1965.  In February 1989 the FSM was divorced from his former spouse.  
Counsel states the FSM provided copies of his divorce decree to the Defense Finance and Accounting Service (DFAS) and the Office of Personnel Management (OPM), as he was in a civil service status.  The SBP stipulation in the divorce decree states the FSM agreed to designate the former spouse as the irrevocable beneficiary instead of any future wife.  

3.  OPM responded positively and upon providing certified copies of the divorce decree, changed the designation of that coverage to former spouse.  No response was received from DFAS which led the FSM to believe he had complied with the requirements of the divorce.  The FSM continued to pay premiums until the full amount, 520 months, was paid up.  His intentions regarding former spouse coverage are further illustrated in completing other military forms confirming the former spouse was the beneficiary.  Additionally, his Retiree Account Statement continued to list the former spouse's date of birth.  Even after the FSM was remarried, in August 1991, he did not take any action to designate his new spouse as the beneficiary of his SBP.  When he and his second wife were divorced in April 1999, their divorce decree made no reference to SBP.  Counsel argues that:

* T____ was the beneficiary of the SBP when the FSM retired through the date of the divorce; she was never deleted as the SBP beneficiary
* The FSM made contact with DFAS and OPM to change the SBP designation to former spouse coverage; OPM complied but DFAS did not 
* The FSM believed no additional documentation was needed and as such, continued to pay monthly premiums until he was paid up
* The Board has previously granted relief, directly or indirectly, in multiple cases with similar circumstances based on intent
* Although the FSM was remarried his second divorce made no mention of the SBP annuity
* The military SBP annuity was intended for the former spouse (T____)

4.  Counsel provides:

* Denial letter from the DFAS
* Applicant's certificate of birth
* FC USA Form 20-22 (Statement of Establishment of Election of Options)
* USAFSA Form 2621 (SBP - Election Certificate - By Existing Retiree)
* Decree of Dissolution of Marriage
* Separation Agreement
* Two letters from DFAS
* Letters to DFAS and OPM
* Response from OPM
* USAFAC Form 20-232 (Designation of Beneficiary - Unpaid Retired Pay of Deceased
* Civil Service Designation of Beneficiary
* Designation of Beneficiary - Federal Employee Group Life Insurance (FEGLI) 
* Army and Air Force Mutual Aid Association Annual Statement
* Retiree Account Statement
* Foreign birth certificate
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's death certificate. 


CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 17 November 1921.  He and the former spouse (T____) were married on 1 February 1946.

2.  Having had prior enlisted service, the FSM was appointed as a Regular Army commissioned officer on 19 June 1947.  He served in a variety of stateside or overseas assignments and he attained the rank of lieutenant colonel (LTC).

3.  On 31 May 1965, the FSM retired and he was placed on the Retired List in his retired rank of LTC on 1 June 1965.  

4.  Subsequent to his retirement, on 9 December 1972, he completed an SBP Election Certificate.  He indicated he was married to T____ and they had a dependent child, Zxx (the applicant).  He also indicated he desired an annuity under the SBP for spouse only based on the full amount.  

5.  On 24 January 1989, the FSM and T____ entered into a separation agreement and property settlement.  He agreed that survivor benefits pursuant to the SBP from the military retired pay and his civilian service retirement plan would be irrevocably designated solely in his wife's favor instead of any future wife and he would execute any documents necessary to effect this provision. 

6.  On 3 February 1989, the FSM and his former spouse (T____) were divorced.  Their divorce decree incorporated their separation agreement. 

7.  On 19 September 1989, the FSM mailed two separate but similar letters.  He provided DFAS and OPM copies of his divorce decree and indicated that he agreed to provide SBP benefits to his former spouse.  He further asked if any further action was required on his part.

8.  On 6 October 1989, OPM responded and requested a certified copy of all relevant documents, including the property settlement.  

9.  On 20 December 1989, he completed a USAFAC Form 20-232 wherein he designated his former spouse as the primary beneficiary and their daughter, Z____, (the applicant), as the secondary beneficiary of his retired pay. 

10.  On 20 December 1989, he also completed a Designation of Beneficiary - Civil Service Retirement System form and a Designation of Beneficiary - FEGLI Program form wherein he designated his former spouse as the primary beneficiary and their daughter, Z____ (the applicant), as the secondary beneficiary of his civilian retired pay and life insurance.  
11.  There is no indication the former spouse (T____) made a deemed election to change his SBP coverage from "spouse" to "former spouse" within one year of the date of their divorce.

12.  His pay records show he continued to pay SBP premiums over the years.  His Retiree Account Statements reflect he had "spouse SBP coverage."  The spouse's date of birth listed matches the former spouses (T____).  

13.  On 19 May 2008, DFAS notified the FSM that since he had reached age 70 and had paid SBP premiums for 360 months premiums would be terminated under what is called "paid-up" SBP.  He was also informed premiums would stop automatically in October 2008.

14.  On 24 September 2010, the FSM died.  His death certificate listed his marital status at the time of death as "divorced." 

15.  On an unknown date subsequent to his death, DFAS notified the former spouse (Txxxxxx) that she was ineligible for the SBP annuity.  In order for a former spouse to be eligible for the SBP, the former spouse had to be awarded the SBP in the divorce decree and she would have had to have deemed the election for former spouse within one year of the date of the divorce.  Records on file reflected that although the property settlement named her as the beneficiary of the SBP there was no record that she deemed the election within one year of the divorce. 

16.  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.

17.  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.

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

19.  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.

20.  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 one 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that when the law established the SBP in 1972 the FSM elected to participate with spouse coverage based on the full amount.  

2.  In January 1989, the FSM and the former spouse (T____) entered into a separation agreement that was later incorporated into their divorce decree on
3 February 1989.  The agreement stipulated that the FSM would designate his now former spouse (T____) as beneficiary of his military and civilian SBP.  He communicated with DFAS and OPM, his civilian employer.  OPM responded and advised him of the requirements.  DFAS did not respond.  

3.  SBP elections are made by category, not by name.  Once the former spouse (T____) and the FSM were divorced, she was no longer his spouse.  Nevertheless, he was required to make a former spouse election as stipulated in their divorce decree.  Although the former spouse (T____) never deemed the election within one year of her divorce from the FSM, the FSM clearly and diligently attempted to comply with his divorce decree.  

4.  Additionally, even if the FSM remarried in 1991 and was divorced in 1999, his 1999 divorce decree could not have awarded SBP benefits to the second former spouse since that benefit had already been awarded by the court system to the first former spouse (T____).  

5.  More importantly, the FSM continued to pay SBP premiums until the "paid-up" date, for another 9 years after his second divorce, which is indicative of the fact that he intended to provide an annuity for the former spouse (T____).

6.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected, as a matter of equity, to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the former spouse (T____) should be paid the SBP annuity based on his death.
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:

* showing he changed his SBP coverage from "spouse" to "former spouse" on 3 February 1989
* showing his request was timely received and processed by the appropriate DFAS office
* paying the former spouse (T____) the FSM's 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.
The SBP stipulation in the divorce decree states the FSM agreed to designate the former spouse as the irrevocable beneficiary instead of any future wife.  
ABCMR Record of Proceedings (cont)                                         AR20120005569



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ABCMR Record of Proceedings (cont)                                         AR20120005569



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