IN THE CASE OF:	

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120008504 


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 requests correction of the records of her deceased former spouse, a former service member (FSM), to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states:

* She and the FSM were married from 24 June 1989 to 30 September 2003
* The FSM retired in November 1992; he elected SBP coverage for "spouse and children” at the time 
* After they were divorced, he did not report the change in marital status to the Defense Finance and Accounting Service (DFAS)
* In August 2004, he was employed as a contractor in Iraq; at the time, he changed his address but did not change his SBP coverage

3.  The applicant provides:

* FSM's death certificate
* Her marriage license
* Letter from the FSM's brother
* FSM's December 2011 Retiree Account Statement
* Her divorce decree




CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the FSM's records show he enlisted in the Regular Army on 28 July 1978.  He and Regina, the applicant, were married on 24 June 1989.

2.  The FSM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of first sergeant (1SG)/E-8.

3.  The FSM retired on 31 October 1992 and he was placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 November 1992.

4.  In connection with his retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Regina and they had two dependent children -- Marcus (step-son, born on 28 February 1980) and Sherice (daughter, born on 25 December 1990).  He elected SBP coverage for "spouse and dependent children" based on the full gross amount.  

5.  On 25 July 2003, the FSM and applicant were divorced.  Their divorce decree is silent with respect to the SBP.

6.  There is no indication the FSM notified DFAS of his divorce or that he submitted a voluntary change of his SBP coverage within one year of his divorce. 

7.  The FSM's Retiree Account Statement, dated 31 December 2011, shows:

* he continued to pay SBP premiums based on "spouse and children" coverage through 31 December 2011
* he paid SBP premiums for spouse and child
* he did not have a beneficiary at DFAS for arrears of pay

8.  The FSM died on 30 October 2011.  His death certificate shows he was divorced at the time of death.

9.  The applicant submits a statement from the FSM's brother where he states:

* the FSM developed a tumor while in Iraq; he was medically evacuated to Savannah, GA, where he remained
* he went to Hunter Army Air Field to obtain a will and a power of attorney
* he provided guidance in his will on the distribution of his assets
* he informed his brother (the author) that he wanted his former spouse to receive his SBP 
* he was unaware of the requirements to change the election to former spouse
* he did not stop his premium payment specifically to ensure his former spouse received his annuity

10.  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.

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

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 24 June 1989 and they were divorced on 25 July 2003.  Their divorce decree was silent regarding the SBP.  There was no stipulation that she would remain the designated beneficiary of his SBP.  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.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant within one year of their divorce, which the evidence of record shows he did not make.

2.  SBP election is by category, not by name.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit.  However, a divorced spouse may receive SBP annuity if former spouse coverage is elected or if the election is deemed (under certain conditions).  

3.  Nevertheless, there is no evidence the FSM was remarried.  Yet, he continued to pay SBP premiums until his death, which is indicative of the fact that he intended to provide an annuity for the applicant's benefit.


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 made a voluntary change in election from spouse and children to former spouse and children on 1 August  2003 and that the request was received and processed by the appropriate office in a timely manner; and

	b.  paying the applicant the SBP annuity retroactive to the day after the FSM's death minus applicable premiums 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)                                         AR20120008504



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ABCMR Record of Proceedings (cont)                                         AR20120008504



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