IN THE CASE OF:	   

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017588 


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 correction of the FSM's record to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  She states based on their divorce decree the FSM was supposed to file USAFAC Forms 20-237 and 20-238 (Survivor Benefit Plan Election Statement for Former Spouse Coverage) and (Survivor Benefit Plan Election Change), respectively.

3.  She provides:

* Divorce decree
* Defense Finance and Accounting Service (DFAS) correspondence
* Copy of DFAS check to applicant from FSM's retired pay
* FSM's Honorable Discharge Certificate
* FSM's Death Certificate
* Congressional correspondence, dated 31 August 2012
* Letter from TRICARE, dated October 2011 

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard (ARNG) on 17 February 1948.  He was commissioned as a first lieutenant (1LT)/O-2 in the ARNG on 5 January 

1953.  His date of birth was listed as 18 January 1930.  He remained in the ARNG and he was retired on 18 January 1990 in the rank/grade of captain (CPT)/O3.

2.  On 21 August 1995, the FSM and the applicant divorced.  The divorce awarded the applicant a portion of the FSM's retired pay in compliance with the Uniformed Services Spouses' Protection Act.  In reference to the FSM's SBP, the Court stated the applicant should be named beneficiary of the SBP and the FSM should continue and maintain the SBP in full force and effect and it should not be altered or withdrawn by the FSM during his lifetime.  It was therefore ordered the FSM shall immediately designate the applicant as his former spouse beneficiary under the Armed Services SBP and that she shall continue to remain the SBP beneficiary as the FSM's former spouse under that plan.

3.  On 29 May 2012, the FSM died.  His Certificate of Death shows his marital status as "Divorced."

4.  On 13 June 2012, DFAS notified the applicant of the termination of her payments under the Uniformed Services Former Spouses' Protection Act from the FSM's retired pay.  The agency stated there were no further funds available due to the FSM's death.

5.  On 24 August 2012, DFAS responded to a Congressional inquiry on behalf of the applicant in regard to her entitlement to an SBP annuity.  DFAS stated the applicant and the FSM were married at the time of his retirement on 18 January 1990.  At the time of his retirement, the FSM elected spouse SBP coverage and the applicant was the beneficiary.  The FSM and the applicant divorced on 
21 August 1995 and the FSM's election changed to no beneficiary.  The applicant was not named as a former spouse beneficiary.

6.  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 family members.

7.  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.

8.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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.

9.  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 evidence of record shows the FSM elected to participate in the SBP for spouse only when he was married to the applicant.  The applicant and the FSM divorced on 21 August 1995.

2.  The available evidence shows that as part of the divorce decree, the FSM was ordered to elect former spouse SBP coverage for the applicant, but contrary to the divorce decree, he changed his election to no beneficiary.

3.  It is reasonable to presume that if the applicant was aware of the requirement for her to make a deemed election for SBP coverage within 1 year of her divorce, she would have done so.

4.  Therefore, based upon the SBP award in the final divorce decree and the fact no widow will be deprived of the SBP, it would be equitable and just to correct the FSM's record to show he elected former spouse SBP coverage .  Additionally, the applicant should be required to pay SBP premiums from the date the FSM changed his election to no beneficiary as she failed to exercise her statutory right to make a deemed election and have the premiums collected from the FSM's retired pay.  It would be inequitable to shift the burden for these unpaid premiums to the SBP fund, which is supported by premiums from other retirees.

5.  In view of the foregoing, the FSM's record should be corrected as recommended below.

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 timely voluntary change in election from spouse to former spouse coverage on 22 August 1995;

	b.  showing the requested change was timely received and processed by the appropriate office; and

	c.  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)                                         AR20120017588



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ABCMR Record of Proceedings (cont)                                         AR20120017588



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