IN THE CASE OF:
BOARD DATE: 2 May 2013
DOCKET NUMBER: AR20120019310
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 correction of the records of her deceased former spouse, a former service member (FSM), to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity.
2. The applicant states she believes her former spouse, the FSM, intended for her to receive the SBP annuity, but he did not complete the paperwork before he passed away.
3. The applicant provides:
* FSM's death certificate
* Her divorce decree
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he enlisted in the Regular Army on 16 February 1977. He and Choxx, the applicant, were married on 16 December 1980.
2. The FSM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of first sergeant (1SG)/E-8.
3. The FSM retired on 30 June 1997 and he was placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 July 1997.
4. In connection with his retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to Choxx and they had no dependent children. He elected SBP coverage for "spouse" based on a reduced base amount of $434.00. His spouse at the time, the applicant, concurred with his decision.
5. On 11 May 2011, the FSM and applicant were divorced. Their divorce decree is silent with respect to the SBP.
6. There is no indication the FSM notified officials at the Defense Finance and Accounting Service of his divorce or that he submitted a voluntary change of his SBP coverage within 1 year of his divorce.
7. The FSM died on 25 August 2012. His death certificate shows he was divorced at the time of death. The Defense and Accounting Service has stated that he paid SBP premiums until his death.
8. 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.
9. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.
10. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant and the FSM were married on 16 December 1980 and they were divorced on 11 May 2011. Their divorce decree was silent regarding the
SBP. There was no stipulation that she would remain the designated beneficiary of his SBP. SBP elections are made by category, not by name. Once the FSM
and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant within 1 year of their divorce, which the evidence of record shows he did not make.
2. Since SBP election is by category, not by name, a spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit. However, a divorced spouse may receive an SBP annuity if former spouse coverage is elected or if the election is deemed (under certain conditions).
3. Nevertheless, there is no evidence the FSM was remarried. He continued to pay SBP premiums until his death, which is indicative of the fact that he intended to provide an annuity for the applicant.
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 voluntary change in election from spouse to former spouse on 1 June 2011 (the first day of the month following his divorce) and that the request was received and processed by the appropriate office in a timely manner; and
b. 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) AR20120019310
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ABCMR Record of Proceedings (cont) AR20120019310
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