IN THE CASE OF: 

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130018252 


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

2.  The applicant states the court ordered in the divorce decree that SBP would continue and never be cancelled.  Her late husband has paid SBP premiums since July 1987.  If he had known of a flaw on his part he would have stopped it.  She feels she is entitled to the SBP benefit and he did also until the day he died. She was by his side and he told her to make sure she received her SBP benefit and that he loved her.

3.  The applicant provides copies of the following:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 31 July 1987
* Marital Settlement Agreement
* FSM's death certificate
* her social security card

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 June 1946.  He enlisted in the Regular Army on 6 October 1974, with prior enlisted service in the U.S. Marine Corps.  

2.  The FSM and the applicant were married on 10 April 1982.
3.  His record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 19 May 1987, which shows in:

* Part III - SBP Election – he indicated he was married to the applicant, had dependent children, and declined coverage
* Part VI - Certification – his signature which was witnessed on 19 May 1987
* Part VIII – SBP Certificate – no entries; however, the form noted the law required that information of a non-election or reduced coverage be provided to his spouse

4.  The FSM was honorably retired on 31 July 1987.

5.  The applicant provided a copy of a Marital Settlement Agreement, dated 10 January 2002.  The agreement stipulated that the applicant was entitled to SBP which would continue to be effective and would never be cancelled.  The agreement stated the applicant and the cohabitated as husband and wife until on or about December 2001; however, a date of divorce is not listed.

6.  There is no available evidence the applicant or FSM submitted an election for former spouse coverage within the required 1-year period after their divorce.

7.  The FSM died on 28 June 2013.  His death certificate indicated that he was divorced, had no spouse, and the informant was his sister.

8.  An email, dated 18 November 2013, shows the Defense Finance and Accounting Service (DFAS), Indianapolis, IN, verified that SBP for the FSM listed no beneficiary as of 31 January 2002.  The prior election was for spouse.  DFAS attached an SBP annuitant package, dated 29 July 2013, received from the applicant.

9.  An email, dated 26 June 2014, shows DFAS verified the FSM's SBP premiums did not stop and continued to be deducted until his death.

10.  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.

11.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within one year of divorce.

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 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.

13.  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 evidence of record shows the FSM completed a DA Form 4240 on 19 May 1987 declining SBP coverage.  He retired on 31 July 1987.  It appears he was automatically enrolled in the SBP since his spouse had not concurred with his declination.  He and the applicant were separated on 10 January 2002 and their marital settlement agreement stipulated award of SBP to the applicant.  

2.  The settlement agreement stated the applicant and FSM cohabitated as husband and wife until on or about December 2001; however, it does not list a date of divorce.  It appears their divorce was finalized on 31 January 2002, as that was the date DFAS indicated the SBP election was suspended.

3.  DFAS verified their records showed the FSM had SBP spousal coverage prior to 31 January 2002 and listed no beneficiary after that date.  Therefore, it appears at some point the FSM elected spousal SBP coverage, paid SBP premiums, and that election was suspended on 31 January 2002 as a result of their divorce.  There is no evidence of record and the applicant did not provide sufficient evidence to show she or the FSM submitted a deemed election to change the SBP coverage from spouse to former spouse within the required one-year period.  The FSM died on 28 June 2013.

4.  Considering the applicant was designated the SBP annuitant and the FSM continued to pay SBP premiums until his death, it appears he clearly intended for the applicant to be entitled to an SBP annuity upon his death. 
5.  Since there is no current spouse with a vested interest, it would be appropriate as a matter of equity to correct the FSM's records to show he requested to change his SBP election from spouse to former spouse within one year of his divorce and this election was timely received and processed by DFAS, thereby entitling the applicant to an SBP annuity retroactive to the day after the FSM's death on 28 June 2013.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 changed his SBP election from "spouse" to "former spouse" on 1 January 2003 (within one year of their divorce), his request was timely received and processed by the appropriate DFAS office, and paying the applicant an SBP annuity retroactive to the day after the FSM's death on 28 June 2013.



      _______ _  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)                                         AR20130018252



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ABCMR Record of Proceedings (cont)                                         AR20130018252



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