BOARD DATE:	 3 April 2014 

		DOCKET NUMBER:  AR20130011742 


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 correction of the records of her late husband, a former service member (FSM), as follows:

* by showing he timely elected to change his election in the Reserve Component Survivor Benefit Plan (RCSBP) from spouse to former spouse coverage on 19 November 1994
* by showing the Defense Finance and Accounting Service (DFAS) timely processed this change in election
* by paying her an SBP annuity as the former spouse retroactive to the date of the FSM's death on 6 March 2013

2.  The applicant states:

   a.  The FSM via the divorce agreement and subsequent court order decree was required to make her his SBP beneficiary.  It was assumed that the FSM and his attorney completed this task.  The FSM never notified DFAS officials to change his SBP election from spouse to former spouse coverage within one year of the divorce.  She was unaware of her right or duty to "deem" the election.  She has been listed as the one and only spouse of record.  The FSM made SBP payments from the first day of retirement until the time of his death.  She was the only spouse of the FSM during his military career and was married to him for the vast majority of his military career.  


   b.  She and FSM were married on 1 June 1957 and were divorced on 18 November 1994.  The FSM enrolled in the SBP for spouse coverage at the time of his retirement on 31 May 1992.  The FSM retained her as his designated SBP annuity recipient in name as indicated by her date of birth on his DFAS Retirement Statement.  Since he did not change the SBP category she cannot claim SBP benefits.  

   c.  The FSM remarried on 6 May 1995 and was divorced on 31 March 1998.  Before, during, and after this marriage, she was the SBP beneficiary.  The FSM's death certificate shows he was divorced at the time of his death.

   d.  It is logical to presume that if the FSM had intentions to disregard the court's decree to continue SBP protection for her, he would have discontinued premium payments or changed the name of his designated SBP beneficiary.  Therefore, it appears the FSM believed that she retained her SBP beneficiary status and remained eligible to receive SBP benefits upon his death.  This is based on his continued payment of SBP premiums and his designating her by name as the SBP annuitant.

   e.  The fact that SBP premiums continued to be deducted from the FSM's retired pay through the date of his death and that she was designated the SBP annuitant are the overriding issues in this case.  She was married to the FSM for 37 years which included all but four years of his 39-year military career.  The FSM had no other spouse during his military career, and the court awarded her the SBP beneficiary status.  Therefore, as a matter of equity, it would be appropriate to correct the record to change the SBP coverage to former spouse.

3.  The applicant provides copies of the following:

* FSM's enlisted DD Form 214 (Report of Separation from the Armed Forces of the United States), Oath of Office, and retirement orders and certificate
* their marriage certificate
* divorce agreement and court order
* correspondence between attorneys
* marriage certificate and divorce decree of the FSM and Laura
* FSM's retired pay statements and death certificate
* letter from DFAS to their son
* denial letter from DFAS
* son's affidavit




CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 May 1932.  He and Vera, the applicant, were married on 1 June 1957.  He was appointed a warrant officer in the U.S. Army Reserve (USAR) on 29 July 1987, with prior enlisted service.  

2.  The FSM's record contains a Notification of Eligibility for Retired Pay at Age 60 letter, dated 29 June 1982, wherein the FSM was advised of his entitlement to participate in the RCSBP and upon receipt of the notification letter he had 90 days in which to elect to participate in the SBP.

3.  The FSM was placed on the retired list on 30 May 1992, his 60th birthday.  

4.  The FSM's record also contains a DA Form 3713 (Data for Retired Pay), dated 19 April 1993, which stated the FSM completed 20 years on 25 June 1984, his retirement application was received on 10 December 1992, and a DD Form 1883 (SBP Election) was not on file.

5.  The applicant provided copies of the following:

   a.  Their Settlement Agreement, dated 29 October 1994, and divorce decree, dated 18 November 1994, which stipulated the applicant would be the beneficiary of the FSM's SBP annuity.

   b.  A marriage certificate and divorce decree which showed the FSM was married to Laura on 6 May 1995 and they were divorced on 31 March 1998; the decree does not stipulate Laura would be the beneficiary of the FSM's SBP annuity.

   c.  DFAS-IN Retired/Annuitant Pay Statements for June 1993, August 1995, January 2011, and December 2011, which show spousal SBP premiums were being deducted from the FSM's retired pay.  The January and December 2011 statements identify the spouse's date of birth.

   d.  FSM's death certificate which shows he died on 6 March 2013 and listed his marital status as divorced.

   e.  A letter from DFAS, dated 12 March 2013, wherein the FSM's son was advised that the FSM made an SBP election and charges were being deducted from his retired pay as required by the original election at the time of retirement, but no claim for SBP had been filed.  


   f.  A letter from DFAS, dated 14 May 2013, wherein the applicant was advised that the records on file did not show the FSM elected former spouse coverage SBP upon divorce (18 November 1994) and there was no deemed election within one year of the marriage termination.  Based on the FSM's declination, her application for the SBP was denied.

   g.  Son's affidavit wherein he stated the FSM suffered from many major medical issues from 1999 on.  He served as his father's Power of Attorney for over a decade.  In May of 2005, he and his mother [applicant] began taking care of the FSM and they all lived under one roof.  In July 2011, his parents [FSM and the applicant] moved into the handicapped accessible in-law quarters he built next door to his home.  The FSM resided here with his mother until his death in March 2013.  The FSM made it clear to him that his mother was to be taken care of after his death.  Upon his death, the FSM instructed him to quickly contact DFAS and ensure that his mother's annuity payments would start as soon as possible.  It was always his father's intent that his mother receive the SBP annuity and it was always referred to as a done deal.

6.  On 17 July 2013, a staff member of DFAS verified the applicant was listed as the spouse for the FSM's SBP.

7.  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.  

8.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

9.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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 one 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.

10.  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 FSM retired on 30 May 1992.  He and the applicant were divorced on 18 November 1994 and their divorce decree stipulated she would be the beneficiary of his SBP annuity.  There is no evidence of record and the applicant did not provide sufficient evidence to show she or the FSM submitted a deemed election to change the SBP coverage from spouse to former spouse within the required one-year period (18 November 1995).  The FSM died on 6 March 2013.

2.  Considering the applicant was designated the SBP annuitant and the FSM continued to pay SBP premiums though the date of his death, it appears he clearly intended for the applicant to be entitled to an SBP annuity upon his death. 

3.  Since there is no current spouse with a vested interest, it would be appropriate as a matter of equity to correct the FSM's records to show he requested to change his SBP election from spouse to former spouse within 1 year of his divorce and this election was timely received and processed by DFAS, thereby entitling the applicant to an SBP annuity retroactive to the day after the FSM's death on 6 March 2013.

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 FSM changed his SBP election from "spouse" to "former spouse"






within 1 year of their divorce on 18 November 1994, his request was timely received and processed by the appropriate DFAS office, and paying the applicant an SBP annuity retroactive to the day after the FSM's death on 6 March 2013.



      _______ _ 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)                                         AR20130011742



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ABCMR Record of Proceedings (cont)                                         AR20130011742

   
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