IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140005810 


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 that 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 an SBP annuity.

2.  The applicant states, in effect, that at the time of their divorce the divorce decree provided that she remain the beneficiary of the FSM’s SBP annuity.  Neither she nor the FSM were aware that a former spouse election was required within 1 year of the divorce.  They were divorced on 30 May 1997 and shortly thereafter (September 1997) he was admitted to a hospital for alcohol-induced stress and Wernicke’s Aphasia.  He was placed in a locked facility for a time in December 1997.  Meanwhile, at the request of the FSM she became his primary caretaker with a power of attorney. She was his representative for legal and financial matters until his death in 2013.  He could not comprehend forms and did not use computers.  She also states that despite their divorce, she continued to care for him as if they were still married and she is sure that it was his desire to provide for her after his passing.  

3.  The applicant provides a one-page letter explaining her application, correspondence to and from the Defense Finance and Accounting Service (DFAS), Divorce Decree, medical documents related to the FSM’s condition, Power of Attorney, Last Will and Testament, and Death Certificate.



CONSIDERATION OF EVIDENCE:

1.  The FSM was married to the applicant when he elected the reduced amount option ($600.00) for spouse and child SBP coverage at the time of his retirement on 1 November 1982.  He was retired in the pay grade of E-8.

2.  On 30 May 1997, the FSM and the applicant were issued a final judgment of simplified dissolution of marriage decree in the State of Florida.  The marital settlement agreement indicates the FSM was entitled to SBP benefits and the FSM would pay all funds necessary to continue any and all benefits for the applicant and daughter that are available to him because of his retirement from the military. 

3.  Documents provided by the applicant show the FSM was admitted to a hospital in Sarasota, Florida on 3 October 1997 for major depression with psychotic features and alcohol dependence.  On 14 October 1997, he was discharged and was transferred to the Department of Veterans Affairs Medical Center in Bay Pines, Florida, where he remained until 10 December 1997.  He continued to pay SBP premiums until December 2012 when his premiums were paid up.

4.  The FSM died of lung cancer in a nursing home on 16 October 2013 at the age of 70 and the applicant was listed as the informant.  The FSM’s residence is listed as the same address as the applicant.

5.  On 14 March 2014, DFAS informed the applicant that she was not eligible for an SBP annuity because a former spouse election was not received by DFAS within 1 year of the divorce decree.

6.  The FSM’s Last Will and Testament named the applicant as his executor and named her as the beneficiary of his Estate.

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 Uniformed Services Former Spouses Protection Act (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 
1 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 1 year of the date of the court order or filing involved.

11.  Wernicke’s Aphasia is defined by Wikipedia as a type of aphasia traditionally associated with neurological damage to Wernicke’s area in the brain.  Damage in this area not only destroys local language regions but also cuts off most of the occipital, temporal, and parietal regions from the core language region.

DISCUSSION AND CONCLUSIONS:

1.  It is clear, based on the documentation submitted by the applicant, that it was the FSM’s intention for her to be the sole and irrevocable beneficiary of his SBP. 

2.  It is also clear that he was not in any mental condition to understand or comprehend his responsibility to notify DFAS of the former spouse requirement. The applicant’s contention that she was unaware of the requirement and was only concerned with taking care of the FSM at the time is accepted.

3.  Since the FSM continued to pay his SBP premiums until they were paid up and since no one but the applicant was a potential beneficiary as a matter of equity it would be in the interest of justice to correct the FSM’s records to show he elected former spouse coverage in a timely manner.







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 FSM requested his SBP coverage be changed to former spouse coverage on 1 June 1997 and that 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

2.  The Board wants the applicant and all others to know that the sacrifices made by the FSM in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms and the applicant’s contributions and support throughout his service.



      _______ _   __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)                                         AR20140005810



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005810



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1