IN THE CASE OF:  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140002266 


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 former service member (FSM), requests, in effect, correction of the FSM's records to show he enrolled in the Survivor Benefit Plan (SBP) and changed his election from spouse to former spouse so that she may be entitled to an annuity.

2.  She states that after their divorce, she was unaware that she had 1 year to make an election for former spouse coverage.  She states that all court-ordered documents were handled by her attorney. 

3.  She provides:

* Divorce Decree
* State of Georgia Death Certificate
* Three Supporting Statements

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 3 November 1960.  On 
20 September 1966, he and the applicant were married.  

2.  On 29 April 1987, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He elected child only coverage.  Section VII - SBP Certificates (Required when married members do not elect full coverage or decline coverage for spouse) shows the applicant was not available for counseling and she was informed by a letter.  The remarks section shows the letter was mailed to her on 9 May 1987, at the time of the FSM's terminal leave and she did not reply.  It further stated that the FSM and the applicant had a legal separation and were contemplating divorce.

3.  On 30 June 1987, the FSM was honorably retired.

4.  On 5 May 1989, the FSM and the applicant divorced.  Paragraph 5 states that the "[FSM] agrees that he shall cover both [applicant] and minor child on the SBP available under the Uniformed Services Former Spouse Protection Act.  If unable to cover [applicant] and said minor child on SBP, then and in that event, [FSM] agrees to maintain a life insurance policy on his life in a sum equal to the SBP naming both child and [applicant] as beneficiaries of said policy."

5.  On 10 May 1989, the applicant's attorney wrote a letter to the Retired Pay Operations, Indianapolis, IN.  In the letter, he requested the SBP for a former spouse be deemed to have been made due to the fact that the FSM entered into a voluntary written agreement of an election for SBP coverage for a former spouse incident to a proceeding of divorce, and the agreement was incorporated in a Court-order.

6.  The FSM died on 19 October 2013.  The death certificate lists his marital status as divorced.

7.  In the processing of this case, the Board's staff contacted the Defense Finance and Accounting Service (DFAS).  DFAS informed the Board's staff their records indicate the FSM and applicant divorced on 5 May 1989 at which time payments for SBP were suspended.  Additionally, the DFAS representative provided a copy of the letter, dated 21 November 2013, that was sent to the applicant denying her an annuity under the SBP for the FSM.  In the letter it stated the FSM did not make a request to change his election from spouse to former spouse coverage nor was a deemed election for former spouse coverage made by the applicant. 

8.  The applicant provided three supporting statements from their children who maintain that the FSM established survivor benefits with the intent that it would be used to provide for the applicant.

9.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  

10.  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.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected child only coverage at his retirement in 1987.  However, based on the 21 November 2013 DFAS letter, it appears that his election defaulted to include spouse coverage due to a lack of spouse concurrence.  The applicant and the FSM were divorced on 5 May 1989. The divorce decree stated the FSM agrees to cover both applicant and the minor child under the Uniformed Services Former Spouse Protection Act and if unable, agrees to maintain a life insurance policy on his life in a sum equal to the SBP.  It is unknown whether or not the FSM maintained a life insurance policy with the applicant as his beneficiary as stated in the divorce decree. 

2.  The evidence of record further shows on 5 May 1989, the FSM's payments for SBP were suspended.  The FSM did not make a request to change his election to former spouse coverage.  However, contrary to the DFAS letter, on 10 May 1986 the applicant’s attorney submitted a timely deemed election request. 

3.  Accordingly, it is appropriate to grant the requested relief.  The applicant should be aware that any back premiums may have to be paid.

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 applicant made a proper and timely request for a deemed election of former spouse coverage; and

	b.  paying the applicant an annuity effective the day after the FSM's death minus any required premium payments.



      __________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)                                         AR20140002266



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ABCMR Record of Proceedings (cont)                                         AR20140002266



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