IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130022211 


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 deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse. 

2.  The applicant states she and the FSM were divorced in August 1992.  Their divorce decree stipulated that she would be the beneficiary of his SBP.  He told her that he took care of the paperwork and that she should not contact the Army due to the Privacy Act.  However, when he died in 2013 she found out the FSM did not change the SBP election to former spouse after their divorce.  The monthly SBP premiums were paid until they were paid up in 2008.

3.  The applicant provides:

* FSM's death certificate
* Her divorce decree
* Her marriage certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 25 November 1934.  

2.  With previous service, the FSM's records show he reenlisted in the Regular Army on 8 January 1969.  He and Maureen, the applicant, were married on 19 March 1972.
3.  On 11 May 1973, in connection with his upcoming retirement, the FSM completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Maureen and they had seven dependent children.  He elected SBP coverage for "spouse" based on the full amount. 

4.  On 30 June 1973, the FSM retired and on 1 July 1973, he was placed on the Retired List in the retired rank of sergeant first class/E-7.  

5.  On 5 November 1991, the FSM and applicant submitted a petition for dissolution of marriage, and on 25 March 1992, they were divorced.  Their divorce decree stated "It is further ordered that the Defendant shall be entitled to the Plaintiff's Survivor Benefit Plan coverage as a surviving ex-spouse.  The Plaintiff shall comply with supplying whatever forms are necessary."  

6.  There is no indication the FSM notified officials at the Defense Finance and Accounting Service (DFAS) of his divorce or that he submitted a voluntary change of his SBP coverage within 1 year of his divorce. 

7.  There is no indication the applicant made a deemed election to change the FSM's SBP coverage from "spouse" to "former spouse" within one year of the date of their divorce.

8.  The FSM died on 22 May 2013.  His death certificate shows he was divorced at the time of death.  

9.  DFAS officials stated: 

* the FSM paid-up his SBP premiums as of 1 October 2008 (360 payments)
* his retired account shows he has spouse SBP coverage effective 1 July 1973
* the only marriage certificate on file is between him and Maureen
* there is no record of his divorce at DFAS

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.  Elections are made by category, not by name.  

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  
12.  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 on active duty and had not yet made an SBP election.

13.  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.

14.  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 applicant and the FSM were married on 19 March 1972 and they were divorced on 25 March 1992.  Their divorce decree stipulated that he would maintain an SBP annuity for the former spouse.  Even though the FSM continued to pay the SBP premiums neither the applicant nor the FSM made a deemed election for former spouse coverage within one year of the divorce.  

2.  Since an SBP election is by category, not by name, a spouse loses eligibility as an SBP spouse beneficiary upon divorce.  There is no provision in the SBP that makes former spouse SBP coverage an automatic benefit.  However, a divorced spouse may receive an SBP annuity if a deemed election is made for the former spouse (under certain conditions) or if the member changes his coverage  to former spouse coverage.

3.  The FSM's death certificate indicates he was divorced.  Accordingly, there is no potential taker with a superior interest in the FSM's SBP.  Additionally, he continued to pay SBP premiums until it was paid up in October 2008, which indicates that he intended to provide an annuity for the applicant.

4.  Therefore, there is sufficient evidence to show the FSM's intent was to change his SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected, as a matter of equity, 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 applicant should be paid the SBP annuity based on his death.

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:

   a.  showing the FSM made a voluntary change in his SBP election from spouse to former spouse on 26 March 1992 and that the request was received and processed by the appropriate office in a timely manner; and

	b.  paying the applicant the SBP annuity retroactive to 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)                                         AR20130022211



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ABCMR Record of Proceedings (cont)                                         AR20130022211



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