IN THE CASE OF:  

		BOARD DATE:    20 November 2012

		DOCKET NUMBER:  AR20120007567


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) election to "former spouse" coverage within 1 year of his divorce.

2.  The applicant states her former spouse was required to change his SBP coverage from "spouse" to "former spouse" coverage in accordance with their divorce decree, dated 14 May 1996.  She further states she submitted her divorce decree to the Defense Finance and Accounting Service (DFAS) when the divorce was finalized, but she was never notified by DFAS or any other entity when the FSM ceased making payments.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* State of Florida, County of Okaloosa, Final Judgment of Dissolution of Marriage, dated 14 May 1996
* State of Florida, Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  On 27 April 1954, the FSM enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 111.60 (Light Weapons Infantryman).

2.  On 12 October 1955, the FSM married the applicant.

3.  The FSM served continuously, through multiple periods of reenlistment and/or extension in a variety of stateside, overseas, and combat assignments, and attained the rank/grade of first sergeant (1SG)/E-8.

4.  On 26 September 1974, in connection with his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel), wherein he declined SBP coverage in Part II (SBP Election).

5.  On 30 September 1974, the FSM was honorably retired after completing
20 years, 1 month, and 27 days of honorable and faithful service.  On 1 October 1974, the FSM was placed on the Retired List in the rank/grade of 1SG/E-8.

6.  On 28 July 1982, according to DFAS records, the FSM enrolled in the SBP during an open season election, opting for "spouse-only" coverage.  

7.  On 14 May 1996, the applicant and the FSM were divorced.  Their State of Florida, Final Judgment of Dissolution of Marriage, dated 14 May 1996 contains the following language regarding the SBP:

At his retirement, Husband elected the SBP for the benefit of Petitioner/Wife.  The sum of $96.11 is presently being withheld from his military pay to fund the SBP.  By this Agreement, Husband stipulates that he will maintain in full force and effect and continue Wife as his sole beneficiary of his currently existing SBP as specifically authorized in the "Uniformed Services Former Spouses Protection Act," Public Law 97-252, and all amendment thereto. 

8.  The available record does not indicate the FSM changed his SBP coverage from "spouse-only" to "former spouse" coverage, which was required to maintain the applicant as his SBP beneficiary.  

9.  On 14 May 1996, according to DFAS records, the FSM suspended his SBP payments.  His available record does not indicate he resumed his payments at any time prior to his death. 

10.  On 14 December 2011, the FSM died.  His death certificate lists his marital status as divorced.  His available record does not indicate he remarried at any time following his divorce.

11.  The applicant filed a claim with DFAS for the FSM's SBP annuity; however, her claim was denied.  

12.  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.

13.  Public Law 97-35, enacted 12 August 1981, established an open season for SBP enrollment from 1 October 1981 – 30 September 1982.  

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

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

16.  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 during an open-season election prior to his/her divorce), or was still on active duty and had not yet made an SBP election.

17.  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.

18.  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 election to "former spouse" coverage within 1 year of his divorce. 

2.  The FSM and the applicant were married on 12 October 1955 and were divorced on 14 May 1996.  The FSM elected no SBP coverage for his spouse at the time of retirement; however, there is evidence he elected "spouse-only" coverage during a later open season.  Additionally, he paid SBP premiums from 28 July 1982, the date of his open season enrollment, until 14 May 1996, the date of his divorce.  

3.  The FSM’s divorce decree required him to change his election from "spouse-only" to "former spouse" coverage; however, the evidence shows that on 14 May 1996, instead of changing his SBP election he suspended his SBP payments.  He did not terminate his coverage, and there is no indication he ever remarried.  His death certificate shows his marital status as divorced.

4.  It was Congress' intent in establishing the SBP to provide for those spouses who supported the military member during his or her military career.  In view of the foregoing, and as a matter of equity, it would be appropriate to correct the FSM’s records to show he changed his SBP annuity enrollment election from "spouse-only" to "former spouse" coverage within 1 year of his divorce, and pay the applicant the SBP annuity.  The applicant is advised that back SBP premiums must be paid.

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-only" to "former spouse" within 1 year of his divorce on      14 May 1996;

   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, less any premiums due from 14 May 1996 to the date of his 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)                                         AR20120007567



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