IN THE CASE OF

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130022330 


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 spouse, a former service member (FSM), to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states she and the FSM were married from 1968 to 1990.  After a period of divorce, they remarried in 2010 and remained married until his death in 2013.  She is the only former spouse of the FSM.  Coverage was maintained and the premium was paid as required through the date of his death.  She was both the spouse and the former spouse and the denial of the SBP annuity is a clear injustice. 

3.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS)
* Letter from her attorney to DFAS
* FSM's Retiree Account Statement
* 1968 marriage certificate
* 1990 divorce decree
* 2010 marriage certificate

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be paid the SBP annuity.

2.  Counsel states the Board's prompt attention to this matter is required. 
3.  Counsel does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he enlisted in the Regular Army on 29 January 1968.  He and Deborah, the applicant, were married on 18 August 1968.

2.  The FSM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of first sergeant (1SG)/E-8.

3.  In connection with his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Deborah and they had dependent children.  He declined SBP coverage.  His spouse, Deborah, the applicant, was notified and concurred with his election to decline participation. 

4.  The FSM retired on 31 January 1988 and he was placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 February 1988. 

5.  On 8 August 1990, the FSM and applicant were divorced.  The divorce document provided by the applicant is silent with respect to the SBP.

6.  According to the FSM's pay records at DFAS, he elected to participate in the SBP program during the Open Season enrollment (April 1992 through March 1993) authorized by Congress since his retirement.  He elected former spouse and child coverage.

7.  The applicant remarried, to WJH, on an unknown date in 2006.  However, they were divorced on what appears to be 21 March 2010. 

8.  The FSM and applicant married again on 17 May 2010.

9.  The FSM's Retiree Account Statement, effective 2 December 2012, shows he had SBP coverage for spouse, at the rate of $126.75 per month plus the Open Season cost of $19.50 per month.  He had made 297 out of 360 payments so far. 

10.  The FSM died on 5 April 2013.  His death certificate shows he was married to the applicant at the time of death. 

11.  On 12 September 2013, DFAS officials notified the applicant that she was not entitled to an annuity as a spouse.  A review of the FSM's records indicated the FSM elected not to participate in the SBP upon his retirement in 1987.  However, he elected to participate in the SBP during the 1992-1993 Open Season.  He elected "former spouse and child" coverage.  She was married to the FSM on 17 May 2010.  The FSM never elected spouse coverage when he participated in the program.

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 18 August 1968.  He retired on 31 January 1988.  Prior to his retirement, the FSM elected not to participate in the SBP.  He and the applicant were divorced on 8 August 1990.  Their divorce decree was silent regarding the SBP.  There was no stipulation that she would remain the designated beneficiary of his SBP.  

2.  Nevertheless, despite the absence of a former spouse SBP election, the FSM during the 1992/1993 Open Season elected to participate in the SBP for former spouse and child coverage.  

3.  He and the applicant married again on 17 May 2010.  However, there is no evidence he notified DFAS of his remarriage or that he requested a change to his SBP coverage from "former spouse and child" coverage to "spouse" coverage.   SBP elections are made by category, not by name.  

4.  Once the FSM and applicant were married in 2010, she was no longer his former spouse and no longer an eligible SBP beneficiary.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant within 1 year of their re-marriage, which the evidence of record shows he did not make.

5.  Nevertheless, there is no evidence the FSM was remarried to any other individual.  Additionally, he continued to pay SBP premiums until his death.  Given his Open Season election in the 1992/1993 timeframe and given his remarriage to the applicant and continuation of SBP premium payments through the date of death, it is clear he intended to provide an annuity for the applicant.  

6.  Therefore, his records should be corrected as recommended below. 

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 election from "former spouse and child" coverage to "spouse and child" coverage on 1 June 2010 (the first day of the month following his re-marriage) and that the former spouse (the applicant) concurred with his election; 

	b.  showing his request was received and processed by the appropriate office in a timely manner; and

	c.  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)                                         AR20130022330



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ABCMR Record of Proceedings (cont)                                         AR20130022330



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