IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120009616 


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, in effect, that the Survivor Benefit Plan (SBP) election made by the deceased FSM be changed from spouse coverage to former spouse coverage. 

2.  The applicant states, in effect, that the FSM failed to comply with a court order to convert his SBP from spouse coverage to former spouse coverage after their   marriage was dissolved.  She further states the FSM did not attend any of the divorce proceedings and all paperwork was sent to him through certified mail.  He failed to respond to any of them.  She also states that she was under the impression that he would comply with the divorce decree and change her status to former spouse but he never did and he stopped communicating with her.  She also states that she learned of his death from other individuals.

3.  The applicant provides a copy of a letter from the Defense Finance and Accounting Service (DFAS), a copy of her Verification for Survivor Annuity, a copy of the FSM’s death certificate, and a copy of her divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he retired from the Regular Army on
28 February 1993 after completing 20 years of active duty service.  In conjunction with his retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 10 December 1992.  Part V (SBP Election) of this document shows that he was married to the applicant at the time, and he elected SBP spouse and children coverage at a reduced amount of $507.50.  This document also shows the applicant agreed to the reduced amount on the same date. 

2.  On 8 November 2004, the FSM and the applicant divorced.  Their divorce decree shows the FSM was ordered to name the applicant as his irrevocable SBP former spouse beneficiary.  This document also stated, in effect, that the applicant, as the former spouse, had permission to contact DFAS herself regarding SBP elections if the FSM failed to do so.  

3.  The FSM died on 26 November 2011.  His death certificate shows he was divorced at the time of his death.  

4.  On 2 May 2012, officials at DFAS notified the applicant that there was no record of the FSM requesting to change his election to former spouse or that a copy of his divorce decree had been provided to show he was divorced.

5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

6.  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.

7.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that the SBP election made by the deceased FSM be changed from spouse coverage to former spouse coverage. 

2.  Although the applicant could have and should have made a written request that the FSM’s SBP be converted from spouse coverage to former spouse coverage within 1 year of their divorce when the FSM failed to do so the evidence shows that an injustice occurred in this case.  Therefore, it would now be appropriate to correct the injustice done to the applicant due to the FSM’s failure to comply with the terms contained in their 8 November 2004 divorce settlement.

3.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request that a former spouse SBP coverage election be deemed to have been made within 1 year of the divorce.    

4.  The evidence of record confirms the FSM agreed to continue SBP protection for the applicant as part of their 2004 divorce.  It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 1 year of the dissolution of his marriage to the applicant.  As the FSM’s death certificate shows that he was divorced and had not remarried prior to his death, there appears to be no other person other than the applicant with a valid interest in receiving SBP annuity payments due to the death of the FSM.

5.  Given the FSM’s agreement to the court-directed continued SBP protection for the applicant as a former spouse, and given that the FSM continued to make SBP payments until his death, it would be appropriate and serve the interest of justice, compassion, and equity to grant the requested relief.  

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 the applicant timely filed a request for a deemed election to change the FSM’s SBP election from spouse coverage to former spouse coverage and that the applicant be paid 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)                                         AR20120009616



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ABCMR Record of Proceedings (cont)                                         AR20120009616



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