IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130000664 


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 the records of her former husband, a deceased former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for former spouse. 

2.  The applicant states she and the FSM divorced on 18 December 2000; however, their divorce decree required the FSM to maintain SBP coverage for former spouse.

3.  The applicant provides:

* Final decree of divorce, dated 18 December 2000
* Certificate of Death, dated 1 November 2012
* Letter from the Defense Finance and Accounting Service (DFAS), dated 30 November 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM entered active duty on 5 January 1974 and served as a medical services commissioned officer in the Regular Army.  He served in a variety of stateside or overseas assignments and he attained the rank/grade of lieutenant colonel (LTC)/O-5.

3.  On 19 April 1995, in connection with his upcoming retirement, he submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to the applicant on XX February 1973, and they had one dependent child, a daughter, born on 12 January 1976.  He elected SBP coverage for spouse only based on the full amount.  

4.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows he retired on 31 May 1995 and he was placed on the retired list in his retired rank/grade of LTC/O-5.  

5.  The applicant and FSM were divorced on 18 December 2000.  The divorce decree ordered the FSM to name the applicant as the annuitant of his SBP using former spouse coverage.  

6.  The FSM died on 31 October 2012.  His certificate of death shows he was unmarried at the time of death.

7.  On 30 November 2012, by letter to the applicant, an official at the Retired and Annuity Pay, DFAS, informed the applicant, in response to her request for information concerning a deemed election of former spouse SBP coverage:

	a.  An official at DFAS had reviewed the FSM's account and determined the applicant was not eligible to receive an annuity under SBP.

	b.  SBP gives retired members of the Uniformed Services an opportunity to provide a portion of their retirement pay to their survivors.  Upon retirement the FSM elected to cover her under SBP.  However, a spouse loses eligibility as a spouse beneficiary upon divorce.  For this to become effective, DFAS must receive a request from the retiree within one year of the divorce.

	c.  If the retiree and former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage.  The request for a deemed former spouse election must be received within one year of the divorce. A divorce decree alone does not constitute a deemed election.

	d.  The FSM did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by the applicant.  

8.  On 2 November 2011, also by letter to the applicant, an official at the Retired and Annuity Pay, DFAS, informed the applicant that:

	a.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  A signed election request must be received before action can be taken to establish former spouse election.

	b.  While a service member is limited to filing an SBP election before the date of retirement, the former spouse is not limited as such.  The law does not provide for an election to be deemed on the basis of a court order or a court agreement.  However, a deemed election request may only be filed by the former spouse or the former spouse's attorney, and the request must be received within one year of the date of the original court order which awarded the coverage.  Since the amended court order was issued after the member's retirement date, this court order is not valid and does not entitle her to former spouse SBP.  For the order to have been valid, it would have needed to have been issued prior to the member's date of retirement. 

	c.  Since the statutory filing deadline has expired, an election of former spouse coverage cannot be deemed to have been made and former spouse coverage will not be implemented.

9.  On 13 August 2013, an official at DFAS confirmed via e-mail that the FSM paid his SBP premiums until his death.

10.  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 dependents. An election, once made, was irrevocable except in certain circumstances

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  
12.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and Reservists.  

13.  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.

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 evidence of record shows that in connection with his retirement in 1995 the FSM elected SBP coverage for spouse only.  The applicant and the FSM were divorced in December 2000.  The court awarded her the SBP.

2.  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.  He did not make a former spouse election within one year of the divorce and the applicant did not deem the election within one year of her divorce.  

3.  However, given that the FSM agreed in writing and the divorce decree stipulated he would name the applicant as the beneficiary of his SBP and given the fact that there is no evidence the FSM remarried and he continued to pay SBP premiums until he died, the FSM's intent to provide the SBP annuity to the applicant is clear.  Therefore, it would be appropriate to correct the record to show the applicant deemed the election within one year of her divorce from the FSM.  
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 made a request for a deemed election for former spouse coverage within 1 year of her divorce from the FSM, that DFAS effected the change, and that she be paid 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)                                         AR20130000664



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ABCMR Record of Proceedings (cont)                                         AR20130000664



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