IN THE CASE OF:
BOARD DATE: 27 February 2014
DOCKET NUMBER: AR20130005688
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 records to show she is the beneficiary of his Survivor Benefit Plan (SBP).
2. The applicant states the divorce settlement awarded her 50 percent of the FSM's retired pay and entitlement to the SBP. She went to Fort Bliss, Texas, to take care of this herself because her attorney was charging her extra. She remembers this clearly because she had to file a second application because the first time they had the wrong form.
3. The applicant provides copies of the divorce decree, dated 29 July 2010, and the FSM's Certificate of Death.
CONSIDERATION OF EVIDENCE:
1. On 7 March 2001, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected to participate in the SBP for spouse and children coverage at the full amount. The applicant, his spouse at the time, did not sign the form. Four children are listed by name and date of birth.
2. He retired from the Regular Army in the rank of sergeant first class/pay grade E-7 on 31 March 2001.
3. On 29 June 2010, their divorce was finalized. The divorce decree provides that the applicant will receive 50 percent of the FSM's retired pay and the SBP annuity.
4. SBP premiums were continued. The U.S. Army Human Resources Command Soldier Management System Integrated Web Services (IWS) shows the applicant called on 13 June 2011 seeking assistance obtaining her benefits. Upon learning that his former spouse was trying to get the beneficiary changed, the FSM tried to ensure that his daughter was covered.
5. The FSM died on 23 February 2013. The two younger children would have been approximately 24 years and 4 months and 22 years and 10 months of age, respectively.
6. In response to a November 2013 inquiry, the Defense Finance and Accounting Service (DFAS) informed the applicant that there was no provision in law or regulation to automatically convert spouse coverage to former spouse coverage. A court order, in and of itself, was insufficient to effect such a change. Any change, whether made by the service member or by the former spouse, had to have been requested within 1 year of finalization of the divorce. Neither the former spouse nor her attorney had filed such a request.
7. 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 family members.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.
9. Title 10, U.S. Code, section 1448(b)(2), permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. 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 of the person is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The FSM did not change the SBP beneficiary designation from spouse to former spouse following his divorce.
2. However, the IWS shows the applicant took timely action to perfect her claim to the SBP annuity. Apparently she did not obtain effective assistance, because DFAS has no record of a deemed election.
3. In view of the foregoing, it would be appropriate at this time to correct the FSM's records to show his SBP beneficiary category was changed from spouse to former spouse coverage, full base amount, effective 15 June 2011, resulting in the applicant's entitlement to receive SBP payments based on former spouse coverage beginning the day after the FSM's death.
BOARD VOTE:
___x____ ____x___ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 former spouse's deemed election was received and processed by the appropriate office in a timely manner and the FSM's SBP coverage was changed from spouse to former spouse coverage on 15 June 2011 and
b. paying the applicant the SBP annuity retroactive to the day after the FSMs 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) AR20130005688
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ABCMR Record of Proceedings (cont) AR20130005688
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