IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017220 


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 correction of her former husband's records 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:

* the FSM believed he signed her up for the SBP and he continued to have money taken from his pay after they divorced
* the FSM paid her a portion of his military pay from his personal funds so she would not have to pay an attorney to handle the money issues
* since they were both nearing 70 years of age in 2012, she decided health issues could cause a problem with him paying the money directly to her from his personal funds
* she hired an attorney in 2012 to secure her portion of the money from the Defense Finance and Accounting Service (DFAS) and the court order was approved about the same time the FSM died
* they were married for 30 years and he never remarried
* he would not have continued to pay her out of his personal funds over the years had he not intended for her to have the benefit

3.  The applicant provides:

* FSM's death certificate
* marriage separation agreement
* divorce decree
* front page of a DD Form 1883 (SBP Election Certificate)
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* letter from DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 7 July 1945.  He and the applicant were married on 24 October 1968.

2.  The FSM enlisted in the Regular Army on 28 May 1964.  He was honorably released from active duty on 10 May 1967.

3.  He enlisted in the Virginia Army National Guard (VAARNG) on 18 November 1971.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant first class/E-7.

4.  On 24 October 1994, he and the applicant entered into a separation agreement.  Their agreement stipulated:

* the applicant would receive her marital percentage share of any and all retired pay and benefits
* the FSM would sign and file any documents necessary to have the applicant designated as the spouse and/or former spouse beneficiary entitled to the FSM's SBP provided the applicant understands her entitlement to the SBP may be suspended if she remarries
* the applicant shall have the right to file documents having her designated as the FSM's former spouse beneficiary entitled to his SBP and he shall assist her in completing such documents, including signing such documents
* the applicant, in accordance with State and Federal laws, acknowledges her responsibility to apply for direct pay and designation as a former spouse for the purpose of the FSM's SBP within 1 year of the date of her divorce and said application may not be made on her behalf by her attorney
* the applicant accepts full responsibility to make all applications required of her by government law or administrative policy

5.  On 12 January 1996, the VAARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  On 27 February 1996, the FSM completed a DD Form 1883.  He indicated he was married to the applicant and they had a child born in 1974.  The FSM elected spouse-only Reserve Component SBP (RCSBP), Option C (Immediate Coverage), based on the full amount.  His spouse, the applicant, concurred.

7.  On 16 January 1998, the FSM and the applicant were divorced.  Their divorce decree incorporated their separation agreement.

8.  The FSM was transferred to the Retired Reserve on 1 December 1998.

9.  The FSM was placed on the Retired List in the rank/grade of sergeant first class/E-7 on 7 July 2005, his 60th birthday.

10.  The FSM died on 11 November 2012.  His death certificate shows his marital status as "divorced, not remarried."

11.  There is no indication the FSM requested to change his SBP election from spouse to former spouse coverage.  Likewise, there is no indication the applicant deemed the election within 1 year of their divorce as stipulated in her separation agreement.

12.  The applicant provided a DD Form 2656-1 completed on 20 December 2004. 
This form is not filed in the FSM's official records or in his pay records with DFAS.  The DD Form 2656-1 shows the FSM made the following entries:

* he requested to change his SBP coverage to former spouse due to divorce
* he identified the applicant as his former spouse
* he elected coverage for former spouse based on the full amount
* he and a witness authenticated this form with their signatures on 20 December 2004

13.  According to the FSM's DFAS pay records:

* a deemed election was never submitted by the applicant
* the applicant applied for an annuity in 2012, but she was denied since the FSM never elected former spouse coverage
* the FSM continued to pay SBP premiums until the date of his death

14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members serving 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.

15.  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.

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

17.  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 serving on active duty and had not yet made an SBP election.

18.  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.

19.  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 receipt of his 20-year letter in 1996.  He and the applicant were divorced in 1998 and their divorce decree stipulated:

* the FSM would sign and file any documents necessary to have the applicant designated as the spouse and/or former spouse beneficiary entitled to his SBP
* the applicant would apply for direct pay and designation as a former spouse for the purpose of the FSM's SBP within 1 year of the date of their divorce

2.  For unknown reasons, neither party took any action.  The records show the FSM did not elect the applicant as the former spouse SBP beneficiary within 1 year of their divorce and the applicant did not deem a former spouse SBP election within 1 year of their divorce.

3.  Nevertheless, there is no evidence the FSM remarried.  His pay records show he continued to pay SBP premiums until his death which indicates he intended to provide an annuity for the applicant.

4.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from spouse to former spouse.  As such, his records should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the former spouse – the applicant – should be paid the SBP annuity based on the FSM's death.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing the FSM made a change in his SBP election from spouse to former spouse on 1 April 1998 and the request was received and processed by the appropriate office in a timely manner; and







	b.  paying the applicant the SBP annuity retroactive to 12 November 2012, 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)                                         AR20130017220



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ABCMR Record of Proceedings (cont)                                         AR20130017220



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