IN THE CASE OF:	

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130014704 


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 the records of her late husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse.

2.  The applicant states:

   a.  She was married to the FSM for 33 years before being divorced.  For 22 years of that time he was in the U.S. Army.  After his time in the military he became involved with drugs and another woman and she filed for divorce.  Sometime later, he was diagnosed with lung cancer.  She took him back into her home, took him to doctor appointments, and eventually took him home for hospice care.  She is grateful that her job was flexible enough that she could do this for him.

   b.  When she applied for SBP benefits after his death, she was told it was required that his SBP coverage be changed from "spouse" to "former spouse" and because her husband had not done this, she was no longer his spouse and was not eligible to receive the SBP.  She feels this is an injustice to her and her late husband's wishes.  It is not realistic to expect someone, even someone of sound mind, to remember that this sort of change was necessary.  He continued to pay into the SBP until his death, approximately 6 years after their divorce.  She supported him, took care of their children and household for the entire time he was on active duty, and took care of him again when he needed her help.  He paid into the SBP believing she would receive this benefit.
   c.  As shown in their divorce decree she assumed all the debt from their years of marriage (over $60,000) and she did not request or receive any of his military retirement.

3.  The applicant provides copies of the following:

* Marriage license
* Decree of Dissolution of Marriage
* FSM's Certificate of Retirement and death certificate
* DD Form 2656-7 (Verification of Survivor Annuity)
* W-4P (Withholding Certificate for Pension or Annuity Payments)
* FMS Form 2231 (Direct Deposit)
* A letter to a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 21 August 1970.  

2.  After having had prior service, the FSM enlisted in the Regular Army on 22 January 1974.  His record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 14 May 1991, which shows in:

* Part V – SBP Election – he indicated he was married to the applicant, had dependent children, and elected "spouse and dependent children" coverage at a reduced amount
* Items 14 and 16 – his SBP election was irrevocable and cost for spouse coverage was suspended upon death or divorce of the spouse
* Item 17e – he listed a daughter with a date of birth (DOB) of XX April 1973, a son with the DOB of XX August 1976, and another son with the DOB of XX November 1982
* Part VI (Certification) – his signature which was witnessed on 24 May 1991
* Part VIII – SBP Certificates – her signature, dated 24 May 1991, acknowledging the FSM's election

3.  The FSM was honorably retired on 30 June 1991.

4.  The FSM and the applicant were divorced on 12 February 2004.  Their divorce decree does not stipulate award of an SBP annuity to the applicant. 

5.  There is no available evidence the FSM submitted an election to change his SBP coverage from "spouse" to "former spouse and children" within the required 1-year period after their divorce.

6.  The FSM died on 20 April 2008.  His death certificate shows he was divorced on the date of death.

7.  The applicant provided copies of the following:

   a.  A DD Form 2656-7, dated 18 May 2009, she completed for an SBP annuity and indicated on the form she was the FSM's former spouse and they had a son (DOB XX August 2004) under the age of 23 at time of his death.

   b.  A W-4P and FMS Form 2231 she completed on 18 May 2009.

   c.  A letter, dated 13 April 2013, wherein the Director, Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resources Command, advised a Member of Congress that the applicant was the former spouse of the FSM who had the option of changing his SBP election for "former spouse" coverage after he and the applicant divorced.  The Defense Finance and Accounting Service (DFAS) confirmed that although the FSM continued paying premiums for SBP, he neglected to change his election to "former spouse," which was why the applicant was denied SBP benefits when she applied.  The applicant may apply to the Army Board of Correction of Military Record.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. 
An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.  

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 14 May 1991 the FSM made an SBP election for coverage for "spouse and dependent children only" and the applicant, his spouse at the time, concurred with this election.  He was honorably retired on 30 June 1991.  He and the applicant were divorced on 12 February 2004, suspending spouse coverage.  Their divorce decree did not stipulate award of an SBP annuity.  The FSM died on 20 April 2008.

2.  DFAS confirmed that although the FSM continued paying premiums for SBP, he neglected to change his election to "former spouse," which was why the applicant was denied SBP benefits when she applied.  The applicant indicated the FSM had a son under the age of 23 at the time of his death.  Therefore, his election of SBP coverage for "children" was still in effect at the time of his death and this election is irrevocable and her spouse coverage was suspended at the time of their divorce.

3.  If the applicant and the FSM are the parents of this child, Sxxxx, born on 15 August 2004, a correction may potentially be made, as the applicant is the custodial parent of the minor child.  If Sxxxx is not the child of the applicant,  relief is not appropriate as Sxxxx obtained a vested interest in the SBP upon his father's death and cannot be divested of that interest in favor of a woman not his mother. The FSM's election of SBP coverage for his minor son became an irrevocable election once he retired on 30 June 1991.  Therefore, the ABCMR is not permitted by law to change his SBP beneficiary from dependent child to former spouse.  

4.  In the absence of evidence that the FSM elected former spouse coverage under the SBP, there is no basis to now designate the applicant as the recipient of said benefits.  By law, the SBP statute prohibits joint former spouse and dependent child annuitant payments if the child is not the offspring of both the retiree and former spouse.  

5.  The applicant may submit a request for reconsideration if she can clarify Sxxxx's relationship to her and the FSM.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __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)                                         AR20130014704



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ABCMR Record of Proceedings (cont)                                         AR20130014704


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