IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003935 


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 retired and now deceased former service member (FSM), requests correction of her former husband's records to show he elected Survivor Benefit Plan (SBP) coverage for former spouse and payment of the SBP annuity based on his death.

2.  The applicant states:

* the FSM believed his lifelong companion would receive the annuity as he continued to pay into the retirement system for her
* the FSM did not realize he had to report his divorce from the applicant; their divorce was due to her illness
* this was an honest and unintended mistake by the FSM; yet, he continued to pay premiums
* she has been ill over the years and the FSM knew she was ill and would need the benefit in the future
* he never meant to defraud anyone; his intent was to continue to provide and care for her through his military benefits 

3.  The applicant provides:

* FSM's death certificate
* divorce decree
* statement from the FSM's sister
* her medical alert, implant record, and medical report
* FSM's certificate of retirement
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 6 December 1935.  He previously served in the Army National Guard (ARNG) (February to July 1954), U.S. Army Reserve (USAR) (July to October 1954), and U.S. Air Force (October 1954 to July 1959).

2.  After a break in service, he enlisted in and served in the ARNG from 2 August 1965 to 2 August 1967.  He again had a break in service and enlisted in and served in the ARNG from February 1973 to February 1976.  

3.  He enlisted in the USAR on 10 February 1976.  He served through multiple extensions or reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  On 12 September 1987, the U.S. Army Reserve Personnel Center issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 

5.  On 12 April 1988, he completed a DD Form 1883 (SBP Election Certificate), wherein he indicated he had been married to Edna, the applicant, since 15 June 1981 but they did not have dependent children.  He elected Reserve Component SBP (RCSBP), spouse only coverage, Option C (Immediate coverage), based on the full amount.  His spouse, the applicant, concurred.

6.  On 3 June 1988, he was transferred to the Retired Reserve. 

7.  On 21 October 1994, as he approached age 60, he submitted a DD Form 108 (Application for Retired Pay Benefits).  With this form, he also submitted a 
DD Form 2656 (Test) (Data for Payment of Retired Personnel).  He indicated he was married to Edna, the applicant, on 15 June 1981.  He elected coverage for spouse only based on full gross retired pay.  His spouse, Edna, concurred with his election.  The FSM, the applicant, and a witness, authenticated this form with their signatures on 21 October 1994. 

8.  On 12 June 1995, having reached age 60, the U.S. Army Reserve Personnel Command published orders placing him on the Retired List in his retired rank/grade of SFC/E-7 effective 12 June 1995.  

9.  On 20 July 1999, the FSM and applicant were divorced.  Their divorce decree incorporated a Property Settlement Agreement, dated 25 May 1999.  Their agreement and divorce decree are silent with respect to the SBP. 


10.  The FSM died on 10 December 2013.  His death certificate does not indicate his marital status at the time of death; however, it lists the informant's name as "Te---a B-ll" and her relationship to the FSM as "daughter." 

11.  There is no indication the FSM requested to change his SBP election from spouse to former spouse coverage.  .

12.  The applicant provided a self-authored statement detailing her medical conditions over the years.  She also provides a statement from the FSM's sister who states the FSM told her many times of his intent for the applicant to receive his military benefits.  The FSM thought he was doing the right thing by paying into his retirement for the applicant.  The two were divorced but only because they were in a financial bind which was made by laws and society.  

13.  According to the FSM's Defense Finance and Accounting Service (DFAS) pay records:

* the FSM never changed his election to former spouse but the applicant remained his beneficiary on his pay records
* a deemed election was never submitted by the applicant
* there is no indication the FSM remarried
* the FSM continued to pay SBP premiums until the date of his death
* no one is currently claiming his SBP annuity

14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members serving on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

16.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

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

18.  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 serving on active duty and had not yet made an SBP election.

19.  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.  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.

20.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected to participate in the RCSBP for spouse coverage at the time of receipt of his 20-year letter in 1988.  He retired in June 1995 at the time of his 60th birthday.  

2.  The FSM and the applicant were divorced in 1999 and their divorce decree did not obligate him to make a former spouse SBP election.  A change in the SBP beneficiary would have been a strictly voluntary action on the part of the FSM absent a provision in the divorce decree, which the evidence of record shows he did not make.

3.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship 

annuity is if former spouse coverage is elected.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

4.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Here, their divorce decree did not grant her SBP benefits so she could not request a deemed election.  

5.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Nevertheless, there is no evidence the FSM remarried. His pay records show he continued to pay SBP premiums until his death which indicates he intended to provide an annuity for the applicant.

6.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from spouse to former spouse.  As such, his records should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the former spouse – the applicant – should be paid the SBP annuity based on 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:

	a.  showing the FSM made changed his SBP election from spouse to former spouse on 21 July 1999 and the request was received and processed by the appropriate office in a timely manner; and


	b.  paying the applicant the SBP annuity retroactive to 11 December 2013, 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)                                         AR20140003935



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ABCMR Record of Proceedings (cont)                                         AR20140003935



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