IN THE CASE OF:  	  

		BOARD DATE:  16 September 2014  	  

		DOCKET NUMBER:  AR20140000163 


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, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.   

2.  The applicant states, in effect, that upon their divorce (after 29 years of marriage) she was designated to be the beneficiary of the FSM’s SBP; however, the change was not made by the Defense Finance and Accounting Service (DFAS) despite the fact that she provided DFAS a copy of the divorce decree.  The FSM paid the SBP premiums and it was his intention for her to receive the SBP benefit upon his death.  However, she is being denied the SBP annuity because a former spouse election was not accomplished within
1-year of the divorce.  She does not understand why a legal court order is not recognized by DFAS. 

3.  The applicant provides copies of a letter from DFAS to her Congressional Representative, her divorce decree, and the FSM’s death certificate. 

CONSIDERATION OF EVIDENCE:

1.  The FSM was serving in pay grade E-7 on 31 December 1970 when he was honorably retired by reason of sufficient service for retirement.  He had served 
20 years and 6 months of active service and was married to the applicant at the time of retirement.

2.  On 1 June 1973, the FSM elected to participate in the SBP with spouse only coverage during an Open Season enrollment period.

3.  On 12 August 1998, the applicant and the FSM were divorced in Wayne County, Georgia and the divorce decree indicates the FSM agreed to continue paying SBP premiums with the applicant as his beneficiary.  It also indicated the applicant and FSM agreed to implement any documents required to effect the terms of the agreement and to perform any other legal act required to implement or effect the terms and intention of this agreement.  It further stated that except as specifically provided herein, no modification or waiver of the terms of this agreement shall be made except with the expressed written consent of the other party.

4.  The FSM remarried on 12 July 2003 and divorced his spouse on 8 February 2007.  He remarried her on 23 February 2007.  It appears that he divorced her again on 1 August 2011.  The FSM died on 26 October 2011 and his death certificate indicates he was divorced and died at his daughter’s home in Florida.

5.  The letter provided by the applicant from DFAS indicates that she was denied an SBP annuity because no election was made by the applicant or the FSM for former spouse coverage within 1 year of the divorce.

6.  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.

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

8.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

9.  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.

10.  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.  Although there is no conclusive evidence that shows a proper former spouse election was made by the FSM, the applicant, or her attorney, the available evidence suggests that it was the FSM’s intention to provide an SBP annuity for the applicant.

2.  The applicant has provided a copy of her divorce decree and contends that because the court ordered her to receive the benefits of the SBP she should receive them; however, that order is issued by a State court and is unenforceable when applied against conflicting Federal law.  It was incumbent upon her legal counsel to provide her guidance on such matters.  In any event, it is reasonable to presume that she believed that her interests were protected.

3.  The FSM continued to pay SBP premiums after their divorce and although he remarried, he divorced before he died and no one is currently receiving the annuity.  It appears the FSM intended to provide an annuity to the applicant.  Therefore, it would be equitable to correct the FSM’s records to show he requested to change his SBP coverage to former spouse in a timely manner.

BOARD VOTE:

___X____  ___X___   ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  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 made a written request to change his SBP election to former spouse on 1 September 1998 and the request was accepted and processed by the appropriate office in a timely manner
* paying the applicant the SBP annuity effective 27 October 2011, the day after the FSM’s death

2.  The Board wants the applicant and all others to know that the sacrifices made by her former husband and herself in service to the United States are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20140000163



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ABCMR Record of Proceedings (cont)                                         AR20140000163



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