IN THE CASE OF:	  

		BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120016712 


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, as the former spouse of a former service member (FSM), requests correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse based on their divorce decree.  

2.  The applicant states:

   a.  they were divorced in 2009 and she hired a lawyer in 2010 to garnish the FSM's wages.  The FSM's lawyer failed to complete this action and he never completed the action for SBP coverage.  
   
   b.  the FSM is in contempt of court and he never followed the divorce decree.  
   
   c.  if something should happen to the FSM, she would have no income.  She has a life-threatening illness and she can barely make it.
   
   d.  the FSM dropped his life insurance before they were divorced and he failed to tell her.  There should be some way she could get his insurance so she can leave something for her grandchildren.  
   
   e.  the FSM was an abusive man, he stole from the Army and had to pay it back, and their family had to help them.


3.  The applicant provides a self-authored statement, a Final Decree of Divorce, and a Military Retired Pay Division Order.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 7 February 1970.  He enlisted in the Regular Army on 9 March 1972.  

2.  At the completion of 20 years of service, the FSM retired from active service on 31 August 1992.  

3.  The FSM's service record does not include his DA Form 4240 (Data for Payment of Retired Army Personnel).

4.  The FSM and the applicant were divorced on 18 December 2009.  The divorce decree stated in part:

	a.  "The Court finds that (applicant's name) is presently named a spouse beneficiary of (FSM's name)'s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable), and that (FSM's name) election to provide the Survivor Benefit Plan benefits to (applicant's name) should be continued by (applicant's name) being designated as a former spouse beneficiary, and that (applicant's name) designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by (FSM's name) during (applicant's name) lifetime, and IT IS SO ORDERED."

	b.  "IT IS THEREFORE ORDERED that (FSM's name) shall elect to designate (applicant's name) as a former spouse beneficiary of (FSM's name) Survivor Benefit Plan.  IT IS FURTHER ORDERED that, pursuant to this order, (applicant's name) be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of Service Member's Survivor Benefit Plan to receive the highest Survivor Benefit Plan entitlement allowed by law...."

5.  His service record is void of evidence which indicates the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of the divorce.  



6.  In an email dated 19 November 2012, the Defense Finance and Accounting Service (DFAS) informed a staff member of the Board that:

   a.  the applicant, B.D., is still reflected as the spouse for the SBP election.
   
   b.  DFAS is still deducting SBP premiums for spouse coverage.

   c.  the applicant filed a congressional inquiry with a Representative in Congress from the Congressional District of Texas in June 2012.  DFAS requested the election form from the member, but hasn't received a response yet.  

7.  The applicant provided a self-authored statement in support of her claim:

	a.  the FSM is a man that was abusive to her for 39 years, but she stood by him just as her mother supported her abusive father.

	b.  the judge (during divorce) gave the FSM everything her family had given them.  She has tried for 3 years to get some help.

	c.  she hasn't been able to get a lawyer to take the FSM back to court.  She has only gotten $2,000 from him.  She lost her life insurance because the FSM cancelled it before they were divorced.  She has a life-threatening illness that makes it difficult for her to get insurance.

	d.  the FSM failed to pay her bills that were in temporary orders.  She is about to lose her doctors and she can't afford to pay her hospital bills.  She's trying to get help and she's started a petition to assist other former spouses who have experienced the same problem.  

8.  In a notarized statement, dated 1 April 2013, the applicant attested that to her knowledge, the FSM is not married at this time.  She confirmed this statement by speaking with their children, H.D.B. and J. Jr.

9.  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 family members.  Elections are made by category, not by name.

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 former spouse coverage for 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.

13.  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’s contentions in regard to changing the FSM's SBP election from spouse to former spouse coverage are acknowledged and determined to have merit.  

2.  The FSM retired on 31 August 1992.  In the absence of the FSM's DA Form 4240, it appears he elected to enroll in the SBP for spouse coverage.  He was married to the applicant at that time.

3.  The FSM and the applicant divorced on 18 December 2009.  In the divorce decree, the FSM agreed to name the applicant as beneficiary of the SBP benefits and to designate her as a former spouse beneficiary.  However, the FSM's service record does not show he requested to change his SBP election from spouse to former spouse coverage within 1 year of the divorce.

4.  The applicant provided a notarized statement attesting that the FSM has not remarried.  Accordingly, it appears no one has a superior interest to that of the applicant.  

5.  Given a court of competent jurisdiction awarded SBP coverage to the applicant, it would be equitable to correct the FSM's records to show the applicant made a written request for a deemed election of former spouse coverage within the time frame provided by law.
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 submitted a deemed election request to change the FSM's SBP election from spouse to former spouse on 19 December 2009 and that her request was received and processed by DFAS in a timely manner.




      _______ _   _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)                                         AR20120016712





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ABCMR Record of Proceedings (cont)                                         AR20120016712



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