IN THE CASE OF:	  

		BOARD DATE:	 3 January 2013 

		DOCKET NUMBER:  AR20120010030 


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 the record of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within one year of their divorce and payment of the SBP annuity based on his death. 

2.  The applicant states:

* The FSM paid into the plan from its inception to his death; he often reminded her that he was still paying into the system
* They were married in 1969 and raised four children; he was declared 100-percent disabled in 1980
* He died in January 2010 and she filed for the SBP annuity; she was told that a former spouse form was not filed
* The FSM never mentioned a former spouse form before
* Neither she nor the FSM married after their divorce

3.  The applicant provides:

* January 2010 Retiree Account Statement
* Certificate of marriage
* FSM's certificate of death
* Divorce decree



CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 3 October 1945.  He and Myrtle, the applicant, were married on 11 April 1969.

2.  He enlisted in the Regular Army on 10 January 1964 and served through multiple reenlistments in a variety of assignments, and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  His records show he was diagnosed with a medical condition which led to a physical evaluation board that rated him at 100% and recommended his placement on the temporary disability retired list (TDRL) effective 3 December 1980.

4.  On 4 November 1980, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married to Myrtle, the applicant, and they had dependent children.  He elected "spouse" SBP coverage based on the full amount. 

5.  He was honorably retired on 2 December 1980 by reason of temporary disability and placed on the TDRL in his retired rank/grade of SSG/E-6 on 3 December 1980.  He was permanently retired on 2 August 1984 by reason of disability. 

6.  On 17 March 1995, the FSM and applicant were divorced.  Their divorce decree is silent with respect to the SBP.

7.  Officials at the Defense Finance and Accounting Service (DFAS) confirmed receipt of the divorce decree in March 1995.  However, there is no indication in the FSM's records that he changed his existing SBP election.

8.  The FSM died on 21 January 2010.  His certificate of death shows he was divorced at the time of death.

9.  The FSM's Retiree Account Statement for January 2010 shows he had and paid for "spouse" SBP coverage.  

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.  

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

12.  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.

13.  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.

14.  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 FSM retired on 3 December 1980.  In connection with his retirement, he completed a DA Form 4240 wherein he elected "spouse" SBP coverage based on the full amount.  He and the applicant were divorced on 17 March 1995.  Their divorce decree did not obligate him to change his SBP election to "former spouse" SBP coverage.  A change in SBP to former spouse beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which the evidence of record shows he did not make.

2.  SBP elections are made by category, not by name.  Once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death. 

3.  Nevertheless, the FSM continued to pay SBP premiums through the date he died and his certificate of death shows he was divorced at the time of his death.  It appears that his intent was to make the SBP coverage change from "spouse" to "former spouse" coverage but he may have not been aware of the appropriate forms to do so.  Therefore, as a matter of equity, his record should be corrected to show he did so in a timely manner and his request was timely received and processed by DFAS.

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 FSM changed his SBP coverage from "spouse" coverage to "former spouse" coverage within 1 year of their divorce on 17 March 1995
* showing his request was timely received and processed by the appropriate DFAS office
* 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)                                         AR20120010030





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120010030



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1