BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000590 


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 husband, a former service member (FSM), to show he elected former-spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states her former husband told her she would be entitled to an SBP annuity upon his passing.

3.  The applicant provides:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM and applicant's marriage certificate
* FSM and applicant's divorce decree
* FSM's death certificate
* FSM's Retiree Account Statement, dated 6 May 1996
* FSM's Retiree Account Statement, dated 25 March 2002
* letter from the FSM to the Army Finance and Accounting Center (currently known as the Defense Finance and Accounting Service (DFAS)), dated 30 June 1994
* letter to the applicant from the Army Review Boards Agency, dated 25 June 2013
* letter to the applicant from DFAS, dated 1 April 2013
* letter to the applicant from DFAS, dated 24 January 2014
* Congressional correspondence
* The American Legion correspondence

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 22 December 1950.

2.  The FSM was inducted into the Army of the United States on 10 January 1951.  Following a brief period of active enlisted service, he was commissioned in the U.S. Army Reserve on 21 December 1951 with concurrent order to active duty as a commissioned officer.  He was appointed in the Regular Army on 10 March 1956.

3.  On 10 January 1980, in conjunction with his retirement processing, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he declared he was married and elected spouse and dependent children SBP coverage in the full amount of retired pay.

4.  The FSM was honorably retired from the Regular Army on 31 January 1980.

5.  The FSM and the applicant divorced on 24 August 1993.  The divorce decree stated all of the children born of their marriage had reached the age of majority.

6.  On 30 June 1994, the FSM contacted DFAS in writing and requested continuation of his SBP election indefinitely for his former spouse following their divorce on 24 August 1993.  He cited Army Echoes, April-June 1994, wherein it stated that notification must be made within 1 year after the effective date of the divorce.  In effect, he requested a change in his SBP election to former-spouse coverage.

7.  The FSM died on 14 September 2012.  The FSM's death certificate shows he was not married at the time of his death.

8.  DFAS records show the applicant submitted a DD Form 2656 (Verification for Survivor Annuity), dated 26 February 2013, claiming entitlement to the FSM's SBP annuity.

9.  On 1 April 2013, DFAS responded to the applicant's request for receipt of an annuity under the FSM's SBP.  DFAS stated the FSM's military records reflected that he did not make a request to change his SBP election to former-spouse coverage and the applicant had not made a deemed election for former-spouse coverage.  DFAS denied the applicant's request.

10.  The applicant provided a copy of the FSM's letter to DFAS, dated 30 June 1994, along with a signed U.S. Postal Service certified mail receipt showing the correspondence was delivered to DFAS on 8 July 1994.

11.  The applicant provided copies of the FSM's Retiree Account Statements showing SBP premium deductions through 2 December 2009.  The FSM's Retiree Account Statement effective 25 January 2010 shows the FSM had paid at least 360 months toward his paid-up SBP coverage and had reached age 70.  Thus, his SBP coverage costs had been terminated, but his coverage remained active.

12.  As of 12 February 2014, DFAS records show there is no eligible beneficiary listed on the FSM's account.  Copies of the FSM's records provided by DFAS include the FSM's letter requesting continuation of his SBP election indefinitely for his former spouse following their divorce.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  On 10 January 1980, the FSM elected spouse and dependent children SBP coverage in the full amount of retired pay in conjunction with his retirement processing.  He retired on 31 January 1980.

2.  The FSM and the applicant divorced on 24 August 1993.  On 30 June 1994, the FSM contacted DFAS in writing and requested continuation of his SBP election indefinitely for his former spouse following their divorce on 24 August 1993.  This request to change his SBP election to former-spouse coverage was made within 1 year of their divorce.

3.  The FSM died on 14 September 2012 and he was not married at the time of his death.  His Retiree Account Statements show he had paid at least 360 months toward his paid-up SBP coverage and had reached age 70 effective 25 January 2010.  DFAS confirms that an SBP annuity is not being paid to anyone on the FSM's behalf.

4.  Therefore, the FSM's records should be corrected to show he requested to change his SBP election to former-spouse coverage within 1 year of his divorce and that it was received and processed by DFAS in a timely manner.  As a result, the applicant should be entitled to the FSM's SBP annuity retroactive to 15 September 2012, 1 day following the FSM's death.

BOARD VOTE:

__x______  __x______  _x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 requested to change his SBP election to former-spouse coverage within 1 year of his divorce and that it was received and processed by DFAS in a timely manner
* paying the applicant the FSM's SBP annuity retroactive to 15 September 2012, 1 day following 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)                                         AR20140000590



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000590



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1