IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140000885 


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 correction of the FSM's records to show she made a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states she applied for an SBP update 2 years ago and provided a copy of her marriage license and birth certificate.

3.  The applicant provides:

* the FSM's DD Form 214 (Report of Separation from Active Duty) with an effective date of 31 March 1977
* DD Form 2618 (SBP Open Enrollment Election)
* DD Form 2656-7 (Verification for Survivor Annuity) with three attachments
* a letter, dated 17 December 2013, from the Defense Finance and Accounting Service (DFAS)
* applicant's letter, dated 24 December 2013, to DFAS

CONSIDERATION OF EVIDENCE:

1.  In addition to the documents provided by the applicant the remaining evidence used in this case was received from DFAS files.




2.  The applicant and the FSM were married on 15 December 1969.  On 
31 March 1977, he was retired and placed on the Retired List the following day.  A DA Form 4240 (Data for Payment of Retired Army Personnel) shows the FSM was married with dependent children and elected not to participate in the SBP.

3.  A DD Form 2618, dated 11 August 1992, shows that during the open season from 1 April 1992 through 31 March 1993 the FSM elected to participate in the SBP with spouse only coverage based on the full amount of his retired pay.

4.  On 21 October 2011, the applicant and the FSM were divorced.  The FSM was ordered to continue the SBP for the benefit of the applicant until one of them was deceased.  The FSM was ordered not to remove the applicant as the former spouse beneficiary.

5.  On 28 November 2011, at age 63, the applicant was remarried.  A letter, dated 23 July 2012, from the applicant in DFAS's files requested an update for SBP and notified DFAS she was married again.  She stated she had included her "certificate of marriage license and SBP plan."

6.  A letter, dated 22 October 2013, from the FSM to DFAS stated he needed to update his marital status and change his address.  His ex-wife notified their office 
2 years ago that they were divorced and she wanted to update her SBP but she never received a confirmation.  There was no response to this letter in DFAS' file.

7.  On 29 October 2013, the FSM died.  His death certificate shows his marital status at the time of death was divorced and no surviving spouse is shown.  His son is shown as the informant.

8.  On 14 November 2013, the applicant submitted a DD Form 2656-7.  In Item 6 (The Following Section Applies to Former Spouse Applicants Only) she indicated the date of her divorce from the FSM was 21 October 2011 and the date of her remarriage was 28 November 2011.

9.  On 17 December 2013, DFAS denied her application for SBP benefits because she had not filed a deemed election within 1 year of her divorce.

10.  Public Law 99-94, the Uniformed Services Former Souses Protection Act (USFSPA), enacted 24 September 1983, established SBP coverage for former spouses of retired members.

11.  Public Law 101-189, enacted 29 November 1989, established an open season from 1 April 1992 through 31 March 1993.  A member who was not participating in the SBP could have elected to enroll in the SBP.  
12.  Title 10, U.S. Code (USC), 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.

13.  Title 10, USC, section 1450, Payment of Annuity Beneficiaries: 

	a.  Section 1450(b)(2) states an annuity for a surviving spouse or former spouse shall be paid to the surviving spouse or former spouse while the surviving spouse or former spouse is living or, if the surviving spouse or former spouse remarries before reaching 55, until the surviving spouse or former spouse remarries.

	b.  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.  

	c.  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 FSM was clearly ordered by the court to designate the applicant as the SBP beneficiary, former spouse.  However, there is no evidence he attempted to do so.  

2.  It appears the applicant may have attempted to submit a deemed election within 1 year of their divorce.

3.  Although the applicant has remarried, she remarried after age 55.  Therefore, she is eligible to receive SBP benefits as the FSM's surviving former spouse.

4.  In the interest of justice, it is appropriate to correct the FSM's military records to show the applicant submitted a written request within 1 year of the date of the divorce for a deemed election and that the election of former spouse coverage based on the full amount of the FSM's retired pay be deemed to have been made.
5.  Although relief is appropriate, the ABCMR recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the ABCMR recognizes that any SBP premiums that may be due since the applicant and the FSM were divorced would have to be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant, despite the terms of the divorce decree.  To the extent that these premiums should have rightfully been paid by the FSM, the applicant’s recourse is limited to an action against the FSM’s estate.

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 applicant submitted a written request on 22 October 2011 that the election of former spouse coverage under the SBP based on the full amount of the FSM's retired pay be deemed to have been made and that this request was timely received and processed by DFAS, and that the applicant be paid the SBP annuity retroactive to the day after the FSM's death.

2.  The applicant is responsible for payment of the SBP premiums that may be due and payable since the applicant and the FSM were divorced; the premiums will be deducted from benefits payable to the applicant.



      _______ _   __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)                                         AR20140000885



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ABCMR Record of Proceedings (cont)                                         AR20140000885



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