BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130016844 


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, the former spouse of a retired, and now deceased, former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death.

2.  The applicant states:

* her former spouse elected Option C on 15 January 1988 when he received his 20-year letter and on 31 December 1992 when he retired
* she and the FSM were divorced after 20 years of marriage in August 2002; in May 2003, just 9 months after the divorce, he discovered his SBP election was for "child" coverage
* he wrote a letter to the Defense Finance and Accounting Service (DFAS) requesting they correct the record to show "spouse" coverage
* she was unaware that she did not have SBP coverage until the FSM passed away in October 2012
* the FSM was a Vietnam veteran; he made a permanent and irrevocable election for spouse coverage
* she inquired about her benefits but she was told she is not entitled to the SBP annuity

3.  The applicant provides:

* DD Form 1883 (SBP Election Certificate), dated 25 January 1988
* Divorce decree, dated 23 August 2002
* FSM's letter to DFAS, dated 30 May 2003
* FSM's death certificate
* Congressional correspondence
* Letter from DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 22 June 1948.  He and Kimberly, the applicant, were married on 6 April 1982.  

2.  The FSM enlisted in the Regular Army (RA) on 15 April 1966.  He served through multiple extensions or reenlistments in the RA.  He was honorably discharged on 20 September 1973.  

3.  He enlisted in the Minnesota Army National Guard (MNARNG) and entered active duty on 23 September 1981.  He served in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  On 15 December 1987, the MNARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

5.  On 25 January 1988, the FSM completed a DD Form 1883.  He indicated he was married to Kimberly, the applicant, and they had three children, born in 1975, 1978, and 1983, respectively.  He elected "spouse" only Reserve Component SBP (RCSBP), Option C (immediate coverage) based on the full amount.  His spouse, Kimberly, the applicant, concurred. 

6.  He retired on 31 December 1992 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 January 1993 by reason of length of service.  

7.  On 23 August 2002, the FSM and applicant were divorced.  Their divorce decree is silent with respect to the SBP.  However, it stipulated that:

* the applicant would receive 18 percent of the FSM's pension 
* their divorce proceedings are not subject to the Soldier's and Sailor's Civil Relief Act of 1940, as amended

8.  There is no indication the FSM requested to change his SBP election from "spouse" to "former spouse" coverage.  However, on 30 May 2003, the FSM corresponded with DFAS.  He indicated that on 25 January 1988, he elected SBP coverage for spouse only as per his attached DD Form 1883.  When he retired in 1992, he completed a DD Form 2656 (Data for Payment of Retired Pay) with the same election.  He added that he did not have a copy of the DD Form 2656 and that his pay records show he had “child only" coverage.  He concluded that this is not the election he made and his election should reflect "spouse only" coverage. 

9.  The FSM died on 21 October 2012.  His death certificate shows his marital status as "Divorced, not remarried." 

10.  Subsequent to his death, the applicant corresponded with DFAS and the Department of Veterans Affairs (VA) through her Member of Congress regarding her entitlement to the SBP and VA benefits.  

11.  On 10 May 2013, a DFAS official wrote to the Member of Congress in reply to his inquiry on behalf of the applicant regarding her entitlement to an SBP annuity.  He stated: 

	a.  The SBP, as outlined in Title 10, U.S. Code (USC), Sections 1447-1455, was enacted on 21 September 1972, to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries.  The FSM elected to participate in the SBP at the time of his retirement.  However, due to their divorce in July 2002, no beneficiary was elected and SBP premiums were no longer being deducted from his military retired pay.

	b.  A spouse loses all eligibility to SBP coverage as of the date of divorce; former spouse coverage is not an automatic entitlement.  Public Law 98-94, enacted 24 September 1983, amended the SBP to give retirees the option to change spouse coverage to former spouse coverage within one year of divorce. Public Law 98-525, enacted 19 October 1984, further amended the SBP to give the former spouse of a retiree the option to request that a former spouse SBP election be deemed to have been made by the retiree.  The request for a deemed former spouse election must also be received within one year from the divorce, and can only be made if the divorce decree or accompanying court order provides that former spouse SBP coverage be provided.  If no election for former spouse coverage is received from either the retiree or the former spouse within one year of divorce, former spouse SBP coverage cannot be established.

	c.  The records show the FSM did not elect the applicant as the former spouse SBP beneficiary within one year of divorce, nor did the applicant deem a former spouse SBP election to have been made by the FSM within one year of divorce.  Based on these facts, former spouse SBP coverage cannot be established on his retired pay account.

12.  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

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  

14.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  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 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.

17.  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 the FSM elected to participate in the RCSBP for spouse coverage at the time of his receipt of his 20-year letter in 1988.  Additionally, although not available for review with this case, the applicant indicates the FSM completed a DD Form 2656 in connection with his retirement in 1992, also electing spouse coverage.  

2.  The FSM and applicant were divorced in August 2002.  The FSM did not make a former spouse election within 1 year of their divorce.  A change in the SBP beneficiary would have been a strictly voluntary action on the part of the FSM absent a provision in the divorce decree, which the evidence of record shows he did not make.  In fact, he corresponded with DFAS and alerted DFAS officials that his election should reflect "spouse" coverage rather than "child" coverage.

3.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

4.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Here, their divorce decree did not grant her SBP benefits so she could not request a deemed election.  

5.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Additionally, the FSM's pay records show he stopped paying SBP premiums after his divorce.  Therefore, contrary to the applicant's contention, there was no intent on behalf of the FSM to provide her with the SBP annuity in the event of his death.  Since there was no beneficiary and since there was no intent by the FSM to designate her as the SBP beneficiary, she is not entitled to the requested relief.  

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)                                         AR20130016844





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ABCMR Record of Proceedings (cont)                                         AR20130016844



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