IN THE CASE OF:  	  

		BOARD DATE:  21 October 2014	  

		DOCKET NUMBER:  AR20140004491 


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 in effect correction of her former husband's record 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 on advice from the Defense Finance and Accounting Service (DFAS), she was told to file this application to claim the SBP annuity.  Her former husband previously served in the U.S. Navy and he also served in the Army National Guard (ARNG) when he retired.  He signed her up for the SBP when he retired and when they were divorced in 2012, no one told her she could deem the election.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service
* U.S. Navy DD Form 214 (Report of Separation from Active Duty)
* U.S. Army DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Marriage license (for the FSM and Toni Joanne, the applicant)
* Divorce decree (for the FSM and Toni Joanne, the applicant)
* W-4P (Withholding for Pension or Annuity Payment)
* Direct Deposit Authorization
* FSM's retirement order
* FSM's certification of death
* DD Form 2656-10 (SBP/Reserve Component (RC) SBP Request for Deemed Election)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 June 1946.  

2.  Having had prior service, the FSM enlisted in the Nebraska (NE) ARNG on 24 February 1979.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.  

3.  The FSM married Jeanne Kay on 30 October 1981.  

4.  On 10 March 1995, the NEARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 17 March 1995, the FSM completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Jeanne Kay and they had a step-daughter.  He elected to participate in the RCSBP, spouse coverage, Option C (immediate coverage) based on the full amount.  He and Jeanne Kay authenticated this form with their signatures. 

6.  On 8 March 1995, the FSM was honorably discharged from the ARNG and transferred to the Retired Reserve,  

7.  On 3 February 1997, the FSM and Jeanne Kay were divorced.  Their divorce decree is silent with respect to the SBP.  

8.  On 5 January 1998, the FSM married Toni Joanne, the applicant. 

9.  Although he reached age 60 on 18 June 2006, the FSM did not submit an application for retired pay until 27 January 2009.  With his DD Form 108 (Application for Retired Pay benefits), he completed two forms: 

	a.  DD Form 2656-6 (SBP Election Change Certificate) wherein he stated his current coverage (status) is "Suspended Coverage" and he desires to resume the existing level of coverage for his new spouse based on remarriage. Only the front page of this form is available. 

	b.  DD Form 2656, dated 27 January 2009, wherein he stated he was married to Toni Joanne as of 17 January 1998.  He elected spouse only SBP coverage based on the full amount.  He and a witness signed this form on 27 January 2009. 
10.  On 26 February 2009, the U.S. Army Human Resources Command published Orders P02-902397 placing him on the Retired List in his retired rank of SSG effective 18 June 2006, his 60th birthday. 

11.  On 26 September 2012, the FSM and Toni Joanne (the applicant) were divorced.  Their divorce decree stipulated that the FSM would execute all necessary documents to assure that the applicant receives her share of any widow's or survivor's benefits relating to his military pension.  

12.  There is no indication the FSM changed his SBP coverage to "former spouse" coverage or the applicant deemed the election within one year of her divorce. 

13.  On 15 July 2013, the FSM died.  He was 67 years of age at the time.  His death certificate shows he was married and the name of his spouse as "Rebecca." 

14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members 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, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option 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 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.
18.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

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 that in connection with receipt of his 20-year letter, the FSM made an RCSBP election.  He elected spouse coverage, Option C, based on the full amount.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  Generally, they cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage. 

2.  The FSM and his spouse, Jeanne Kay, were divorced on 3 February 1997.  Their divorce decree did not obligate him to change his election to former spouse. 

3.  The FSM married Toni Joanne, the applicant, on 5 January 1998.  His spouse coverage was in effect at the time and his spouse, Toni Joanne, the applicant, was an eligible SBP beneficiary as of the first anniversary of their marriage. 

4.  He reached age 60 in June 2006, but did not apply for retired pay until January 2009.  Although he submitted a DD Form 2656 in connection with his application for retired pay, naming the applicant as his spouse and again electing spouse SBP coverage, that election was invalid because he had previously made an irrevocable election for spouse coverage under the RCSBP.  

5.  The FSM and applicant were divorced on 26 September 2012.  Their divorce decree stipulated that he would execute all necessary documents to assure she receives her share of any widow's or survivor's benefits relating to his military pension.  Unfortunately, there is no evidence the FSM changed his SBP coverage to "former spouse" coverage or the applicant deemed the election within one year of her divorce. 

6.  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.  A court order by itself cannot be used to institute coverage.  

7.  The law allows a former spouse to deem the election if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within one year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.

8.  SBP elections are made by category, not by name.  Once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse, not his former spouse, if they have been married for at least 1 year.

9.  The FSM remarried.  The death certificate provided by the applicant clearly shows she (the applicant) was not the spouse at the time of death.  The name Rebecca appears on the death certificate.  This indicates Rebecca, and not the applicant, is the widow and the legal beneficiary of his SBP annuity (if they had been married for at least one year).  His date of marriage to Rebecca is unknown.  However, it is reasonable to conclude since he divorced the applicant on 26 September 2012 and he died on 15 July 2013, he married Rebecca between these two dates and Rebecca was his spouse for less than one year. 

10.  Accordingly, because there is no one with a superior vested interest in the FSM's SBP, it is appropriate as a matter of equity to grant the requested relief and effectuate the intent of the divorce decree.  

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:

* showing the FSM made a voluntary change in election from "spouse" coverage to "former spouse" coverage on 27 September 2012 (the day following his divorce from the applicant)
* showing his request was received and processed by the appropriate office in a timely manner
* paying the applicant the SBP annuity retroactive to 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)                                         AR20140004491



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ABCMR Record of Proceedings (cont)                                         AR20140004491



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