IN THE CASE OF:  		  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20130021561 


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 that she be provided an annuity under the FSM's Survivor Benefit Plan (SBP).
 
2.  The applicant states she was not aware that she had to make a deemed election for the SBP.  It was her understanding the FSM was required to take care of it since it was in the court order.

3.  The applicant provides:

* DD Form 2656-7 (Verification for Survivor Annuity)
* Direct Deposit Sign-Up Form
* W-4P (Withholding Certificate for Pension or Annuity Payments)
* National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement)
* DD Form 1883 (SBP Election Certificate)
* a letter
* Orders P04-684538
* Social Security Administration Printout
* a memorandum
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 93 (Record of Emergency Data)
* Judgment for Property Distribution and Dismissal of Post Separation Support and Alimony
* Certificate of Live Birth
* License and Certificate for Marriage

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a representative of the North Carolina Army National Guard as Counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 30 June 1946.  He entered military service as a Regular Army (RA) enlisted Soldier on 9 March 1966.  Records available to the Board indicate the applicant and the FSM were married on 17 June 1972.   He had a break in service from 30 June 1972 to 30 January 1974.  On 31 January 1974, he enlisted in the Army National Guard.  

2.  On 25 April 1988, the FSM completed a DD Form 1883.  He elected spouse only coverage in the full amount under option C (immediate coverage).

3.  On 6 June 2005, the applicant and the FSM were divorced.  The Judgment for Property Distribution and Dismissal of Post Separation Support and Alimony issued in the District Court of Cumberland County, North Carolina, stated the "Plaintiff [the FSM] shall continue to provide SBP in favor of Defendant [the applicant] and shall continue to maintain her as sole beneficiary of said program."

4.  There is no indication the FSM requested to change his SBP election from spouse only coverage to former spouse coverage.  Additionally, there is no indication the applicant deemed the SBP election within 1 year of her divorce.
Evidence provided by the applicant shows she remarried at the age of 51 on       8 February 2006.

5.  On 30 June 2006, the FSM retired and he was placed on the retired list.

6.  According to information maintained at the Defense Finance and Accounting Service (DFAS) the FSM's account listed no beneficiary for the SBP effective 30 June 2006.  


7.  On 9 August 2012, the FSM died.  His death certificate indicates he was divorced at the time of death.

8.  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.  Elections are made by category, not by name.  An election, once made, was irrevocable except in certain circumstances.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

10.  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 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.

11.  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 elected spouse only coverage in the full amount under option C (immediate coverage) on 25 April 1988.  The applicant and the FSM were divorced in June 2005.  He did not make a former spouse election within 1 year of the divorce and she did not deem the election within 1 year of her divorce.

2.  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.

3.  The law allows a former spouse to deem the election.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within one year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.

4.  SBP elections are made by category, not by name.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  However, since the FSM was not married at his death there is no widow to raise a claim to that of the applicant.  Accordingly, equitable relief is appropriate.

5.  The applicant is advised that even with a correction to former spouse coverage, she may be ineligible to receive the SBP annuity due to the Federal law which prevents payment if the former spouse remarries prior to age 55 and is not subsequently divorced or widowed.  

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 deemed election within one year of her divorce from the FSM and DFAS timely received and accepted her deemed election.



      __________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)                                         AR20130021561



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ABCMR Record of Proceedings (cont)                                         AR20130021561



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