IN THE CASE OF:	  

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130017536 


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 deceased former service member (FSM), requests correction of her former husband's records to show he was enrolled in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states she and the FSM divorced on 7 December 2010.  At the time his health was failing, but he did go through the court process to deem her his beneficiary for his SBP.  The FSM died on 10 September 2013 and she was informed that the FSM never changed his marital status or SBP election.  She believes the FSM had every intention of changing his SBP enrollment status, but failed to do so due to his health.

3.  The applicant provides a copy of their divorce decree and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in August 1939.

2.  After having had prior service, the FSM enlisted in Army National Guard (ARNG) on 26 October 1978.  He was promoted to staff sergeant/pay grade E-6 on 1 August 1985.

3.  On 2 October 1995, the FSM was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

4.  A DD Form 1883 (SBP Election Certificate) shows the FSM indicated he married Bonnie M. on 24 June 1988 and he had two dependent children.  He elected spouse only coverage based on the full amount of retired pay with Reserve Component SBP (RCSBP) Option C (Immediate Coverage).  The DD Form 1883 shows the FSM and a witness placed their signatures on the document on 16 November 1995.

5.  The applicant was discharged from the ARNG and assigned to the U.S. Army Reserve Control Group (Retired Reserve) effective 1 January 1996.

6.  A DD Form 2656 (Data for Payment of Retired Personnel) shows in:

   a.  Section VI (Dependency Information), he indicated he was married to Bonnie M. and that he had two dependent children;

   b.  Section VII (SBP Election):

* item 28 (Beneficiary Category), he elected spouse only coverage
* item 29 (Level of Coverage), he elected the coverage to be based on full gross retired pay

7.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS) was asked to verify information relevant to the FSM's SBP election, coverage, and participation.  DFAS provided copies of the 
DD Form 1883 and DD Form 2656 it has on file (same as described in paragraphs 5 and 7 above, respectively) and indicated no beneficiary is listed, effective 7 December 2010.

8.  The applicant provided copies of the following documents:

	a.  A State of Oregon, Oregon Health Authority, Center for Health Statistics, Certificate of Death, that shows the FSM died on 10 September 2013, he was divorced (no surviving spouse), and A----- F------ (daughter) was listed as the informant of the FSM's death.

	b.  A "Certified True Copy," dated 21 December 2010, of the original In the Circuit Court of the State of Oregon for the County of Josephine, Stipulated General Judgement of Dissolution of Marriage and Money Award, that shows the FSM and applicant separated on 6 February 2009 and that the marital status shall terminate on the date the judgment is signed by the judge.  It also shows the applicant was granted entitlement to 50% of the FSM's monthly net military retired pay.  In addition, the Court directed the FSM to "reaffirm [the applicant] as the beneficiary of any and all SBP (Survivor Benefit Plan) of the Military Retirement death benefits receivable on behalf of [the FSM]."

9.  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.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

11.  Public Law 97-252, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

12.  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 who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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 decree of divorce.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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 of filing involved.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show his SBP election was changed from spouse to former spouse coverage because the divorce judgment required the FSM to maintain SBP with former spouse coverage for the applicant.

2.  On 16 November 1995, the FSM submitted his RCSBP application and he elected RCSBP Option C (Immediate Coverage) for his spouse based on full retired pay.

3.  On 21 January 1999, the FSM submitted his Data for Payment of Retired Personnel and confirmed his SBP election of spouse only coverage based on full retired pay.

4.  Based on the provided evidence, it appears the FSM and applicant divorced on 7 December 2010.  The Stipulated General Judgement of Dissolution of Marriage and Money Award, in pertinent part, directed the FSM to reaffirm the applicant as the beneficiary of his SBP.

5.  There is no evidence of record that shows the FSM complied with the court-ordered directive to maintain SBP with former spouse coverage.

6.  There is no evidence that the applicant notified DFAS to change the FSM's SBP coverage from spouse to former spouse coverage within 1-year of the divorce decree.

7.  The FSM died on 10 September 2013.  At the time, he was divorced (no surviving spouse).

8.  It is not necessary to determine whether the applicant substantially complied with the requirement to establish a deemed election under the facts of this case.  The applicant was awarded SBP by a court of competent jurisdiction.  There is no evidence of record that shows her former husband remarried.  Thus, there is no other party with a superior interest.

9.  Therefore, in view of all of the foregoing evidence, it would be appropriate as a matter of equity to correct the FSM's records to show his SBP category was changed from spouse to former spouse effective 7 December 2010.




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 showing the FSM properly requested his SBP coverage be changed to former spouse and children coverage on 8 December 2010.  As a result of these record corrections, DFAS shall pay the applicant the SBP annuity retroactive to 
11 September 2013, provided she otherwise meets the eligibility criteria.



      _______ _   _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)                                         AR20130017536



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ABCMR Record of Proceedings (cont)                                         AR20130017536



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