IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014245 


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, Mary, a former spouse of a deceased former service member (FSM), requests reconsideration of an earlier request for Survivor Benefit Plan (SBP) benefits.

2.  The applicant states the FSM and his second wife were married less than 
1 year prior to his death.

3.  The applicant provides a marriage license from the Georgia Department of Human Resources.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110010711 on 26 April 2012.

2.  The marriage license from the Georgia Department of Human Resources is new evidence that warrants consideration by the Board.

3.  The applicant and the FSM were married on 3 January 1950.  With prior service in the U.S. Army Reserve and the Army National Guard the FSM served in the Regular Army from 6 January 1956 to his retirement on 31 May 1973, in the rank of sergeant first class.

4.  A DD Form 1883 (Survivor Benefit Plan - Election Certificate), dated 1 May 1973, shows the FSM elected to enroll in the SBP for spouse only coverage at a reduced amount.  The applicant is shown as his spouse.

5.  The applicant and the FSM were divorced on 19 June 1995.  A Total Divorce Judgment and Decree from the Superior Court of Bibb County, GA, dated 
19 June 1995, states, in part, that the FSM was ordered to designate the applicant as the SBP beneficiary.  

6.  There is no evidence the FSM changed his SBP election to former spouse coverage.  There is no evidence the applicant submitted a written request that an SBP election of former spouse coverage be deemed to have been made within 
1-year of the date of divorce.

7.  The applicant provided a marriage certificate from the Georgia Department of Human Resources.  This certificate shows the FSM married Sarah on 6 May 2010 in Macon, Bibb County, GA.

8.  On 4 April 2011, the FSM died.  His death certificate shows he was married to Sarah at the time of his death.

9.  According to records at the Defense Finance and Accounting Service (DFAS) SBP premiums were suspended upon notification of the FSM's divorce in June 1995.  DFAS did not have a record of a remarriage.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

11.  Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states in the case of a spouse who was not married to the member at the time the member became eligible for retired pay, the surviving spouse must have been married to the member for at least 1 year immediately prior to the member's death to be an eligible beneficiary.

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

13.  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 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.

14.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was clearly ordered by the court to designate the applicant as the SBP beneficiary, former spouse.  However, there is no evidence he attempted to do so.  DFAS indicated SBP premiums were suspended as of the date of his divorce.

2.  The applicant did not submit a deemed election within 1 year of their divorce.

3.  The FSM married Sarah on 6 May 2010.  However, based on his date of death, 4 April 2011, they were not married for at least 1 year.  Therefore, Sarah is not an eligible beneficiary for SBP benefits.

4.  In the interest of justice, it is appropriate to correct the FSM's military records to show the applicant submitted a written request within 1 year of the date of divorce for a deemed election and that the election of former spouse coverage based on the reduced amount be deemed to have been made.

5.  Although relief is appropriate, the ABCMR recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the ABCMR recognizes that all SBP premiums due since the date they were suspended by DFAS must be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant, despite the terms of the divorce decree.  To the extent that these premiums should have rightfully been paid by the FSM, the applicant’s recourse is limited to an action against the FSM’s estate.


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 amendment of the ABCMR’s decision in Docket Number AR20110010711, dated 26 April 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant submitted a written request on 20 June 1995 that the election of former spouse coverage under the SBP based on the reduced base amount of the FSM's retired pay be deemed to have been made and that this request was timely received and processed by DFAS, and that the applicant be paid the SBP annuity retroactive to the day after the FSM's death.

2.  The applicant is responsible for payment of the SBP premiums due since the date the premiums were suspended by DFAS; therefore, the premiums will be deducted from benefits payable to the applicant.



      _______ _   __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)                                         AR20130014245



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ABCMR Record of Proceedings (cont)                                         AR20130014245



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