IN THE CASE OF:	

		BOARD DATE:	    2 July 2014

		DOCKET NUMBER:  AR20130019282 


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 the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity.

2.  The applicant states, in effect:

   a.  She was married to the FSM on 11 April 1982.  They were divorced on 31 July 2002.  Prior to their divorce proceedings, the FSM had already retired from the military and he was receiving retired pay.  At the time he retired, he elected SBP with both spouse and child coverage.  His Retiree Account Statement (prior to their divorce proceedings) reflects her and their son, Jexxxxah, born in February 1983, as the beneficiaries .  During their divorce proceedings, she and the FSM reached an agreement which was documented in writing by her attorney.  The FSM represented himself in their divorce proceedings. 

   b.  She and the FSM signed a Property Settlement Agreement on 23 April 2002 and filed it with the Court of Common Pleas of Carbon County, PA, on 
30 April 2002.  Paragraph 10 "Personal Property and Automobiles" states "Wife shall retain possession of all her personal items as well as the assets listed below:  Health Insurance- Tri Care; Survivor Benefit Plan; Prudential Life Insurance Policy No. xxxxxx66 $25,000; IRA plus interest; $100.00 monthly from Husband until Wife remarries."  This language was included in their Property Settlement Agreement so that she would receive an annuity after the divorce in the event of the FSM's death.

	c.  Her divorce attorney did not provide her with any advice or guidance regarding how to ensure that she remained the beneficiary for the FSM's SBP.  After the divorce was final on 31 July 2002, she took it upon herself to go to the local Licking County Veterans Service office to obtain assistance regarding electing the SBP for former spouses.  She met with a senior service officer, who assisted her in faxing a copy of the Property Settlement Agreement (which states she was to receive the SBP) as well as a copy of the divorce decree to the Defense Finance and Accounting Service (DFAS), as shown on the attached fax cover page and transmission verification report confirming this fax was sent from the Licking County Veterans Service Commission on 3 September 2002.  The service officer wrote "From: [FSM] on it. It was her understanding at the time that this was all she needed to do to ensure she received the SBP in the event of his death.  It is her understanding that after the divorce was final and after her fax was sent on 3 September 2002, the FSM submitted a letter to DFAS notifying them that they were divorced and that he desired to keep his SBP in place.  He gave her a copy of the letter for her records after he sent it.  This letter states "Also please be advised that I wish to keep my SBP."  The FSM informed her that at the time he sent in this letter to DFAS, he was informed by DFAS that they had already received her fax. 

	d.  After their divorce, the FSM and she were still in contact with one another and their relationship was very amicable.  His father passed away after their divorce was final and the FSM gave her $40,000 from his inheritance so that she could purchase a home.  This was not something he was required to do in the Property Settlement Agreement.  It was just something he chose to do for her because of their relationship.  On several occasions, over the years, they discussed that she would receive the SBP upon his death.  She did not receive any correspondence from DFAS after that until after his death.  Unfortunately, he was very ill and confined to his home for the last few years prior to his death.  He had congestive heart failure.  She spoke to him almost every day during the last year he was alive.  He passed away on 7 October 2012 from cardiac arrest while he was having a medical procedure at the hospital.  

	e.  After his death, she contacted DFAS on several occasions to obtain an application for the SBP.  After having no success, she returned to see the senior service officer at the Veterans office to obtain assistance.  She was assisted in completing the application for the SBP and she mailed it to DFAS.  However, on 13 December 2012, DFAS sent her a reply in the mail denying her application because DFAS neither received a request from the FSM to change the SBP coverage to former spouse coverage nor a deemed election from her.  
	f.  In summary, the Property Settlement Agreement signed by her and the FSM provided that she was to receive the SBP.  They had agreed that she would not receive any of his military retired pay while he was alive because of other assets she was given in the divorce, such as his IRA.  However, she was supposed to receive an annuity in the event of his death.  He submitted a letter to DFAS after their divorce notifying DFAS of the divorce and requesting that he keep his SBP coverage in place.  She submitted a copy of their Property Settlement Agreement and divorce decree to DFAS shortly after their divorce was final.  She was not instructed to submit any additional information or documents to DFAS and she believed that she had taken all necessary actions to ensure receipt of the survivor benefit in the event of his death.  Given the documents she and the FSM submitted to DFAS as well as the conversations she had with the FSM, she had no reason to believe that she would not receive the survivor benefit in the event of his death.  Neither he nor she ever remarried after their divorce was final.  

3.  The applicant provides:

* Certified abstract of marriage
* Property Settlement Agreement
* Divorce decree
* January 1999 Retiree Account Statement
* Veterans service representative business card
* Fax cover sheet
* Letter from the FSM
* FSM's death certificate
* letter from DFAS
* Pay stub
* Medical documents

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of her former husband's record to show he elected SBP coverage for former spouse, and payment of the SBP annuity based on his death 

2.  Counsel states the Board should review the documents and consider the applicant's request.

3.  Counsel provides a copy of the FSM death certificate.



CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 23 January 1943.  He and Victoria, the applicant, were married on 8 April 1982.  

2.  Having had prior service, the FSM reenlisted in the Regular Army (RA) on 4 June 1979.  He served through multiple extensions or reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  

3.  On 14 June 1985, in connection with his retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Victoria and they had a dependent child, Jexxxxah, born in February 1983.  The FSM elected "Dependent children only" SBP coverage.  He authenticated this form with his signature.  Additionally, after having been informed and counseled, the FSM's spouse, Victoria (applicant) concurred with his election. 

4.  The FSM retired on 30 June 1985 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 July 1985.  He completed over 20 years of creditable active service. 

5.  It appears that after his retirement the FSM changed his SBP coverage to "spouse and children" coverage during an Open season.  The FSM's January 1999 Retiree Account Statement shows he had elected to participate in the SBP and he currently had the following coverage: 

* Spouse Cost, $77.98
* Child Cost, $1.13
* Open Season Cost: $16.79

6.  On 23 April 2002, the FSM and applicant signed a Property Settlement Agreement.  They agreed it would be incorporated into their final divorce decree. The agreements states in: 

	a.  Paragraph 10, in pertinent part, "Wife shall retain possession of all her personal items as well as the assets listed below "2" Survivor Benefit Plan."  

	b.  Paragraph 12, "Wife and Husband covenant and agree that they will forthwith execute any and all written instruments, assignments, released, satisfactions, deeds, notes or such other writings as may be necessary and desirable for the proper effectuation of this Agreement." 

7.  On 31 July 2002, the FSM and applicant were divorced.  The Property Settlement Agreement, dated 23 April 2002, was incorporated but not merged into this final decree of divorce. 

8.  There is no indication the FSM requested to change his SBP election from "spouse and children" to "former spouse" coverage.  However, on 3 September 2002, by fax to DFAS-Retired Pay, the FSM stated "I wish to notify the military retiree branch that I am now divorced."  With this note, he also faxed a copy of his divorce decree. 

9.  The FSM died on 7 October 2012.  His death certificate (hard to read) shows his marital status as "divorced."  

10.  Subsequent to his death, the applicant corresponded with DFAS regarding her entitlement to the SBP annuity.  

11.  On 13 December 2012, by letter, DFAS officials notified the applicant that in order for a former spouse to be eligible for an SBP the member would have to request in writing to change the SBP election from spouse to former spouse, or the divorce decree has to award her the SBP at which time she or her attorney would had to have deemed her election for former spouse SBP coverage within one year of the date of her divorce.  The records show no request was received from the FSM to change his election to former spouse and no deemed election was received. 

12.  According to the FSM's pay records at DFAS:

* The FSM supplied documents verifying the divorce and SBP was changed to No beneficiary effective 7/31/02 (31 July 2002); therefore, SBP deductions were stopped
* DFAS has no documentation that the applicant ever deemed the election
* There is no record that the FSM remarried and no one is currently receiving an annuity

13.  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

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

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 initially elected to participate in the SBP for children coverage at the time of his retirement.  However, although not available for review with this case, it appears subsequent to retirement he elected spouse and children SBP coverage during an Open Season prior to 1999. 

2.  The FSM and applicant signed a Property Settlement Agreement in April 2002 that was incorporated into their final divorce decree in July 2002.  Their agreement stated the applicant shall retain possession of all her personal items as well as the SBP asset.  The FSM did not make a former spouse election within 1 year of their divorce.  In fact, he corresponded with DFAS and informed DFAS of his divorce but never indicated he desired to change his election. 

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.  
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.  There is no error.

6.  However, since the court incorporated the separation agreement into their divorce, and since there is no surviving spouse with a superior interest, as matter of equity only, the records should be corrected to show she deemed the election within one year of her divorce.  Back premiums may be due.

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 applicant made a request for a deemed election within one year of her divorce (on 1 August 2002) from the FSM, DFAS timely received and accepted her request for a deemed election and paying her the annuity retroactive to 8 October 2012.




      _______ _  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)                                         AR20130019282



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ABCMR Record of Proceedings (cont)                                         AR20130019282



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