IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130009630 


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 that the military records of her deceased father, a former service member (FSM), be corrected to show he made a timely change on  24 September 1983 to change his Survivor Benefit Plan (SBP) election from spouse to former spouse. 

2.  The applicant states, in effect, that her father and mother were married during the entire duration of his military career and he retired on 31 October 1973 and elected SBP coverage for his spouse.  The FSM and his spouse divorced on 
19 March 1982; however, at that time there was no provision that allowed for a former spouse election.  The property settlement agreement provided that the FSM agreed to make his spouse the irrevocable beneficiary under the survivorship option of the Army Pension Plan.  

3.  She continues by stating that the divorce decree was issued prior to Public Law 98-94 which provided for former spouse election changes during the period 24 September 1983 to 23 September 1984.  The FSM suffered from post-traumatic stress disorder and alcoholism and in all likelihood was unaware that he had to make such an election.  

4.  She also states that her mother was also unaware that such an election had to be made and the FSM continued to make SBP payments until his account was paid up.  While on his death bed he stated that his former spouse would be taken care of by the SBP which along with the fact that he continued to pay the SBP premiums is indicative that he thought she would receive her annuity.  
5.  The applicant provides a list of enclosures submitted with her application on the last page of her application (page 5).

CONSIDERATION OF EVIDENCE:

1.  The FSM was married on 21 March 1953 and was appointed as a U.S. Army Reserve second lieutenant on 12 June 1953.  He entered active duty on 
7 October 1953 and served on active duty until his retirement in the rank of lieutenant colonel on 31 October 1973. 

2.  At the time of his retirement processing, he made an SBP election for a reduced amount of $300.00.

3.  The FSM and his spouse were divorced on 19 March 1982 and the divorce decree issued provided that the FSM agreed to make his spouse the irrevocable beneficiary under the survivorship option of his Army Pension Plan (paragraph 5.3 of the divorce decree).

4.  The FSM died on 12 December 2012 at the age of 82.

5.  On 27 March 2013, in response to a congressional inquiry, the Defense Finance and Accounting Service informed the applicant’s congressional representative that neither the FSM or his former spouse made a former spouse election within 1 year after the law was enacted and therefore the only recourse was to apply to the Board.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  

8.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).  It provided a 1-year open enrollment (24 September 1983 – 23 September 1984) and an insurable interest option was authorized for beneficiaries following divorce if previously covered under the spouse option. 

9.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse provisions vice insurable interest provisions.
10.  Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

11.  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.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  Neither the FSM nor his former spouse took the required actions to change the FSM's SBP coverage to former spouse coverage within the 1-year time limit established by law.  However, the FSM did not remarry and he continued to pay SBP premiums until he had made the maximum number of payments required.  

2.  It appears it was the FSM's intent to provide SBP coverage to his former spouse after their divorce and it is also reasonable to presume that neither the FSM nor his former spouse were aware that the law had changed and that they had to make a designated “former spouse” change within 1 year of the law being enacted in order for the benefit to carry over.  Therefore, it would be equitable to correct the FSM's records to show he did so.

3.  The applicant and her mother should be aware that since former spouse coverage was initially provided under insurable interest provisions, and that since insurable interest costs are higher than spouse costs, additional SBP premiums may be due.

4.  In view of the foregoing, the FSM’s records should be corrected as recommended below.



BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  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 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, in writing, to change his SBP coverage to former spouse coverage on 24 September 1983 and that his request was received and processed by the appropriate office in a timely manner.  His records should be further corrected by showing he requested to change his former spouse coverage under insurable interest provisions to former spouse coverage under spouse provisions in November 1985 and that his request was received and processed by the appropriate office in a timely manner.

2.  The FSM’s former spouse should be paid the SBP annuity as appropriate effective 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)                                         AR20130009630





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ABCMR Record of Proceedings (cont)                                         AR20130009630



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