IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20120022434 


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 widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show she is entitled to a Survivor Benefit Plan (SBP) annuity.

2.  The applicant states, in effect, she believes that a serious error occurred when the DA Form 4240 (Data for Payment of Retired Army Personnel) was completed by the FSM initiating payment of the SBP annuity to his former spouse.  The applicant states that she married the FSM in 1993 and the DA Form 4240 was executed in 1997.  Part VII – SBP Certificates, Section b (Required When Married Soldier Elects Reduced Coverage or Declined Coverage for Spouse), item 24, requires the signature of the "current" spouse, which would have been her at the time.  This section of the form is "blank" and missing her signature.  She was not provided a written notice or "counseling" as provided for in this section of the form.  As a result of this error, she is being denied a source of income which she believes she is entitled to receive as the FSM's widow.  She believes these benefits rightfully belong to her "now that his former spouse is deceased."

3.  The applicant provides:

* Marriage Certificate
* FSM's Death Certificate
* Only the reverse/back side of DA Form 4240


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 1 December 1932.  His military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 4 June 1954.

2.  The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (also commonly known as a 20-year letter), dated 27 August 1979.  It is unknown whether he made a Reserve Component (RC) SBP election at that time in conjunction with this notification.

3.  In the processing of this case, coordination was made with the Defense Finance and Accounting Service (DFAS), Retired Pay Branch, Cleveland, Ohio, to verify information relevant to the FSM's SBP election.  This coordination resulted in DFAS providing the Board a copy of a decree of dissolution of marriage showing it was received by DFAS on 29 June 2004.

	a.  This document shows Ms. CLS (now deceased and hereafter referred to as the FSM's former spouse) and the FSM were divorced, on 4 December 1984, in the Superior Court of Pima County, Arizona.

	b.  A separation agreement, dated 29 November 1984, was merged into the dissolution of marriage document.  The separation agreement states the FSM and his former spouse were married on 9 June 1956.  It provided that his former spouse would receive a portion, calculated in accordance with a given formula, of all military retired pay the FSM would receive.  A review of the separation agreement did not reveal that the FSM was required to maintain his former spouse as the designated beneficiary of the SBP.

4.  Orders Number D-09-902321, dated 27 September 1988, issued by the U.S. Army Reserve Personnel Center show the FSM was honorably discharged from the U.S. Army Ready Reserve in the rank of colonel effective 27 September 1988.

5.  The FSM attained age 60 on 1 December 1992.

6.  The applicant provides a Certificate of Marriage showing she married the FSM on 22 May 1993.

7.  DFAS indicated that the FSM's former spouse returned to Court on 27 February 1997 and obtained an amended decree of dissolution that directed she be maintained as the former spouse beneficiary of the SBP.

8.  The applicant provides the reverse side of a DA Form 4240.  This form shows that on 20 September 1997, the FSM completed an application for retired pay.  This form required him to make an SBP election.  This page of the DA Form 4240 shows in:

* Part V (SBP Election), item 14, the FSM marked that he was married at the time
* Part V, item 15d, the FSM elected former spouse coverage
* Part V, item 16, the FSM marked he elected to have an annuity (former spouse) based on a reduced amount of his retired pay with the annotation "SEE DECREE"
* Part V, item 17a, (Name of Spouse/Former Spouse), the name of the FSM's former spouse
* Part V, item 18 (provides that a retiree that is not married at the time and who has no dependent children, and wants an annuity for a person who has an insurable interest in the retiree to identify the person with an insurable interest), his former spouse's name and identifying information 
* Part VI (Certification), the FSM certified with full knowledge the information appearing on the form by signing the form on 20 September 1997
* Part VI bears a witness signature
* Part VII (Survivor Benefit Plan Certificates), item 24 (required when a married Soldier elects reduced coverage or declined coverage for spouse), that the applicant did not sign the form indicating her concurrence with the FSM's SBP election  

9.  The applicant provided a Certificate of Death showing the FSM died on 20 December 2009 and was married to her at the time.

10.  The FSM's former spouse died on 31 December 2010.

11.  DFAS also provided the Board with the following two letters.

	a.  A DFAS, Retired and Annuity Pay, letter dated 31 January 2013 addressed to the FSM's former spouse, stated that with regard to her recent correspondence to DFAS regarding the retired pay account of the FSM and SBP coverage, the following was provided:

		(1) Former spouse SBP coverage is not automatically granted based on being awarded in a divorce decree; a formal request must be made to convert spouse SBP coverage to former spouse SBP coverage.

		(2) The letter states that according to DFAS records the SBP was awarded to her in the [amended] divorce decree.  In order for former spouse SBP coverage to be initiated, the retiree or the listed former spouse (or legal counsel) must submit a request (also known as a "deemed election") to the Office of Retired Pay within 1 year of the divorce to convert the coverage from spouse to former spouse.  The 1-year date, in her case, would have been 27 February 1998.

		(3) The DFAS office did not receive any correspondence regarding the SBP until October 1998, which was after the 1-year deadline for making the election to convert from spouse to former-spouse SBP.  Since no deemed election was received within 1 year of her divorce, she was not listed as the beneficiary of the SBP under the FSM's retired pay account, and she couldn't be covered as such.

	b.  A DFAS, Retired and Annuity Pay, letter dated 10 December 2009, addressed to the FSM stated that an adjustment was being made in the SBP portion of his retired pay account based on a divorce decree received.  This adjustment in his coverage was from "automatic spouse coverage" based on the full base amount of his retired pay to "no beneficiary" with an effective date of 27 February 1997.  As a result of this adjustment his SBP cost had been changed to $0.00.  It further indicated the FSM's notification was received by DFAS on about 15 October 2009.  Since this was a retroactive change he had been overcharged for the SBP and would be credited for an overpayment of SBP premiums in the amount of $14,015.

12.  DFAS further stated it did not have a copy of the FSM's application for retired pay on file.

13.  Public Law 92-425, the SBP, enacted on 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.  It required that retiring members and spouses be informed of SBP options and effects.  Changes in SBP options are not authorized except in specific instances or as authorized by law.

14.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

16.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

17.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 
1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse is received within 1 year of the date of the court order or filing involved.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

18.  Public Law 99-145, enacted on 8 November 1985 and effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than the maximum spouse coverage.

19.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP, but who later marries, may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.

2.  The FSM was a Reservist who was issued his 20-year letter on 27 August 1979.  At that time, he was married to Ms. CLS, then his wife of 23 years.  There is no evidence that he made an RCSBP election in conjunction with his receipt of his 20-year letter.  On 4 December 1984, Ms. CLS and the FSM were divorced in the Superior Court of Pima County, Arizona.  An incorporated and merged separation agreement was silent as to the SBP.  The FSM turned age 60 on 
1 December 1992, but did not apply for his non-regular retired pay at that time.  He married the applicant on 22 May 1993.

3.  According to DFAS, on 27 February 1997, Ms. CLS returned to Court and obtained an amended decree of dissolution that directed she be maintained as the former spouse beneficiary of the SBP.  Later that year, on 20 September 1997, the FSM completed an application for retired pay.  On the DA Form 4240, he elected former spouse coverage for Ms. CLS's.  Although the amended decree is not available to the Board, DFAS's account of the amendment is supported by the fact the FSM wrote "SEE DECREE" next to his election of a reduced amount.

4.  At the time the FSM received his 20-year letter, he was not required to elect RCSBP coverage nor was spousal concurrence required if he chose to either defer or decline entirely.  Further, since there was no RCSBP election, the FSM was free to make an election when he applied for his non-regular retired pay in 1997.  That election, which was made about 5 months after his former spouse obtained the amended decree awarding her the SBP, apparently conformed to the requirements of the court order.  It was a proper timely election and, the applicant's allegation notwithstanding, by statute it could not be defeated by her non-concurrence though she was married to the FSM at the time he made the election.  The FSM died in December 2009 at which point his former spouse became entitled to an SBP annuity.  She died the following December and the annuity entitlement essentially died with her.

5.  Therefore, the applicant is not entitled to an SBP annuity under the law nor does her marriage to the FSM, which occurred well after his military service concluded, raise any compelling equitable arguments favoring relief.  

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X____  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20120022434



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ABCMR Record of Proceedings (cont)                                         AR20120022434



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