BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120011598 


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 defers her request for reconsideration, statement, and evidence to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request that the records 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. 

2.  Counsel states the applicant and the FSM were divorced in 2006 and their divorce decree required that the applicant be named as the beneficiary of his SBP annuity.  Although the FSM remarried in November 2010, he died in February 2011, prior to the 1-year anniversary.

3.  Counsel provides the FSM's death certificate and his recent marriage certificate showing he remarried.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110016783 on 3 April 2012. 

2.  The applicant provides, through counsel, a copy of the FSM's death certificate as well as the FSM's certificate showing remarriage. 

3.  The FSM's records show he was born on 13 September 1936 and he married Dxxxxxx, the applicant, on 27 October 1972.

4.  He enlisted in the Regular Army on 16 March 1955 and served through multiple reenlistments, in a variety of assignments, and he attained the rank/grade of command sergeant major (CSM)/E-9.

5.  On 8 January 1985, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to the applicant and had no dependent children.  He elected SBP "spouse" coverage based on the full amount. 

6.  He retired on 31 March 1985 and he was placed on the Retired List in his retired rank/grade of CSM/E-9 on 1 April 1985.

7.  On 9 May 2006, the FSM and applicant were divorced.  Their divorce decree contained a Settlement Agreement, dated 7 April 2006, which states "It is acknowledged and understood that Husband has contributed to the Survivor's Benefit Plan for Uniformed Services and that Wife is eligible to receive the benefits from said plan upon Husband's death.  Husband shall continue contributing to the plan with Wife as beneficiary.  The parties acknowledge that the current contribution to the Plan is at the maximum and the Husband agrees to maintain the contribution at the maximum allowed for the benefit of the Wife."

8.  There is no indication the FSM notified officials at the Defense Finance and Accounting Service (DFAS) of his divorce or that he requested a change to his SBP coverage to "former spouse" coverage within 1 year of his divorce.  Furthermore, there is no indication his now former spouse, the applicant, submitted a request for deemed election within 1 year of their divorce.

9.  On 28 November 2010, the FSM married Exxxxxxx.  However, there is no indication he notified DFAS of his remarriage. 

10.  On 7 February 2011, the FSM died.  His death certificate shows he was married to Exxxxxxx at the time of death.


11.  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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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

14.  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.

15.  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 records of her deceased former husband should be corrected to show he changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree.

2.  The FSM retired on 31 March 1985.  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 9 May 2006.  Their 

divorce decree stipulated that his former spouse would be named as a beneficiary of his SBP annuity.

3.  He did not submit a change in SBP election from "spouse" to "former spouse" coverage within 1 year of his divorce.  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 eligible beneficiary in effect at the time of death. 

4.  The FSM remarried on 28 November 2010.  However, he died on 7 February 2011.  His widow at the time of death is not an eligible beneficiary because they had not been married for at least 1 year.  

5.  Since he continued to pay SBP premiums based on "spouse" coverage and since he had no eligible beneficiary at the time of death, it appears it was his intent to continue to provide SBP coverage for his former spouse.  Therefore, it would be equitable to correct the FSM's records to show he changed his SBP election to "former spouse" coverage within 1 year of the marriage's dissolution.

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 amendment of the ABCMR’s decision in Docket Number AR20110016783 on 3 April 2012.  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 9 May 2006
* 
showing his requests were 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)                                         AR20120011598



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011598



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1