IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140004698 


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 the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage and that she be granted the benefits described in their divorce decree (Tri-Care for Life, Military Identification Card, and Post Exchange and Commissary Privileges).

2.  The applicant states, in effect, her former spouse did not take the necessary action to ensure that she received the benefits awarded in their divorce decree such as former spouse SBP coverage, Tri-Care for Life, Military Identification Card, and Post Exchange and Commissary Privileges.  She goes on to state that she lives 150 miles away from the nearest military installation and was not advised of the procedures to do so.   

3.  The applicant provides copies of the FSM’s DD Form 214 and death certificate, her divorce decree, a copy of a letter requesting that she be designated a former spouse on the FSM’s SBP, and a copy of the FSM’s retired pay account statement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was married to the applicant when he elected full spouse and child SBP coverage at the time of his retirement in the pay grade of E-6 on 1 July 1979.

2.  On 22 September 2003, the FSM and the applicant were issued a final decree of dissolution of marriage in the State of New Mexico.  The marital settlement agreement indicates that the FSM would retain his U.S. Army military retirement benefits and that the applicant would retain her Military Healthcare benefits, Post Exchange and Military Identification Card, Commissary privileges of a former spouse of a military retiree.

3.  A review of the final decree of dissolution of marriage and marital settlement agreement provided by the applicant fails to show any language addressing the SBP.

4.  The FSM died in New Mexico on 9 February 2012 and his death certificate indicates that he was divorced.

5.  Information received from the Defense Finance and Accounting Service (DFAS) indicates that no former spouse election was ever received and that his SBP deductions were stopped after July 2010.  Per the 2011 retiree account statement provided by the applicant, no premiums were due because the FSM’s account was in a “Paid up Status.”

6.  On 10 August 2008, in response to a congressional inquiry, DFAS notified the applicant’s Congressional Representative of the procedures to apply for her benefits under the Uniformed Service Former Spouse Protection Act (USFSPA).

7.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Elections are made by category, not by name. 

8.  Public Law 97-252, the USFSPA, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

9.  Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the 
member was participating in the SBP or was still on active duty and had not yet made an SBP election.

10.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 applicant’s contentions have been noted and appear to have merit.   SBP elections are made by category, not by name.  As long as the applicant was the FSM’s wife she was the SBP beneficiary.  The divorce decree provided by the applicant with her application did not award the applicant SBP entitlements.  Once they divorced she was no longer a beneficiary unless the FSM made a voluntary change to coverage and made such a change within 1-year of divorce. 

2.  Although there is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit, his intent to provide coverage is implicit in his payment of several years worth of premiums between his divorce and his attainment of paid-up status, not having remarried and having no minor children.  His intent could only have been to provide an annuity for the applicant.  

3.  Given the evidence of the FSM’s intent, it is appropriate as a matter of equity to correct the record to show the FSM made a voluntary change to former spouse coverage within 1 year of his divorce.

4.  It is also noted that the court awarded the applicant a Military Identification Card, Military Healthcare benefits, Post Exchange and Commissary privileges of a former spouse of a military retiree.  However, such privileges are covered in separate statutes that are contingent on the amount of time that the applicant was a military spouse and will be determined by the Identification Card (ID) Issuing Facility.  The applicant is advised to contact the nearest military Identification Card issuing facility to resolve her issues in that matter. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 partial 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 to former spouse coverage on 
23 September 2003 and paying the applicant an SBP annuity.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting the applicant Military Healthcare benefits, Military Identification Card, Post Exchange, and Commissary privileges.  



      _______ _   _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)                                         AR20140004698



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004698



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1