IN THE CASE OF:
BOARD DATE: 30 January 2014
DOCKET NUMBER: AR20130009069
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, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show she correctly filed a request for a deemed election for former spouse Survivor Benefit Plan (SBP) coverage.
2. The applicant states she believes her former spouse wanted her to keep the SBP coverage. He passed away before he had a chance to fill out the proper documentation.
3. The applicant provides the following documents:
* marriage certificate
* divorce agreement
* FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he was born on 22 June 1944.
2. On 8 March 1963 he and the applicant were married.
3. On 22 November 1985, the National Guard Bureau (NGB) issued the FSM a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This memorandum notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
4. On 14 December 1985, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) wherein he indicated he was married and had a dependent child. He further elected "spouse and children" Reserve Component SBP (RCSBP) coverage, option C (immediate coverage), based on the full amount. He and a witness authenticated this form by placing their signatures in the appropriate blocks.
5. On 20 May 2004, the FSM completed a DD Form 2656 (Data for Payment of Retired Pay) wherein he indicated he was married (to the applicant), did not have any dependent children, and elected spouse only SBP coverage based on the full gross pay.
6. He was placed on the retired list on 22 June 2004 as a sergeant (SGT).
7. On 29 May 2012, the FSM and applicant entered into a divorce agreement that was to be effective 6 June 2012. Their divorce agreement made no mention of the SBP.
8. On 6 March 2013, the FSM died. His death certificate shows he was divorced at the time of his death.
9. Public Law 92-425, the SBP, enacted 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. Elections are made by category, not by name. An RCSBP election rolls into the standard SBP at age 60.
10. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (to include Reserve Component).
11. Title 10, U.S. Code, section 1448(b)(3), 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.
12. 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 on 14 December 1985 and on 20 May 2004 the FSM elected immediate RCSBP/SBP "spouse only" coverage based on the full amount. He was married to the applicant at the times he made the election.
2. The evidence of record shows that the applicant and the FSM were married on 8 March 1963 and divorced on 6 June 2012. At the time of their divorce, the FSM had an SBP election in effect for spouse only. The FSM died less than one year later.
3. Since it appears the court never awarded the applicant the SBP the FSMs records cannot be corrected to show she made a request for a deemed election of the SBP.
4. However, in view of the foregoing evidence it would be equitable to correct the records to show the FSM voluntarily requested that his spouse SBP coverage be changed to former spouse coverage in a timely manner.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____x___ ___x____ ___x____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM requested his spouse SBP election be changed to former
spouse coverage within 1 year of their divorce, that the appropriate office accepted his election in a timely manner, and paying the SBP annuity to the applicant retroactive to the day after the FSMs death.
2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to showing the applicant filed a request for a deemed election for former spouse SBP coverage.
___________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) AR20100018437
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ABCMR Record of Proceedings (cont) AR20130009069
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