BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140008412 


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 she is entitled to the FSM's SBP as decreed in the Amendment of Final Judgment of Dissolution of Marriage Order, dated 25 April 2006.  The FSM fulfilled the statutory requirements relating to deemed election that allowed her to collect benefits under the SBP as decreed in the court order.  However, after the FSM's death she contacted the Defense Finance and Accounting Service (DFAS) to initiate SBP annuity payment and was told the FSM's records must be corrected and she had to apply through the Army Board for Correction of Military Records (ABCMR) to receive benefits.

3.  She provides:

* Addendum to DD Form 149 (Application for Correction of Military Record)
* Applicant's self-authored statement
* Amended Final Judgment of Dissolution of Marriage Order, dated 
25 April 2006 with Separation and Settlement Agreement
* Applicant's statement, dated 5 September 2006 and 6 November 2006 with fax transmittal
* Certified receipts, dated 11 September 2006 and 18 June 2010
* State of Florida Certificate of Death 
* U.S. Army Finance Support Agency letter, dated 22 September 1975
* Certificate of Retirement
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs (VA) letter, undated
* Marriage Certificate
* DFAS SBP/Retired Serviceman's Family Protection Plan (RSFPP) Premium Statement, dated March 2005

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army of the United States on 1 November 1963.  On 9 March 1966, the FSM was placed on the Temporary Disability Retired List (TDRL).

2.  On 30 August 1968, the FSM and the applicant were married.

3.  On 30 November 1970, he was removed from the TDRL and permanently retired by reason of disability on 1 December 1970.

4.  In a letter from the U.S. Army Finance Support Agency, dated 22 September 1975, subject:  RSFPP or SBP, the agency stated the FSM made an election under the above plan to provide an annuity for his surviving eligible dependents.  The agency received notification that he waived retired pay in full in favor of compensation from the VA.  The letter further stated that if a member who has elected to participate in the RSFPP or SBP waives retired pay for VA payments, he is required by Federal statute to maintain premium payments on a current basis.  Payments should be made by check, bank draft, or money order drawn payable to Retired Pay Operations.  If the FSM prefers, he may authorize the VA to withhold the monthly premiums for his compensation and forward the payments to their office.  Payment of his monthly cost of $15.65 was due on the last day of each month.

5.  In a VA letter, undated, the VA certified that the FSM was in receipt of compensation of 50 percent, at a rate of $695.00 monthly.  The VA compensation was in lieu of military retired pay.

6.  An SBP/RSFPP Premium Statement from DFAS Military Retirement Pay for the month/year of March 2005 shows he was paying SBP premiums in the amount of $12.44 and he had a $.00 remaining balance as of the statement date.

7.  On 25 April 2006, the FSM and the applicant divorced.  Paragraph 9 of the Amended Final Judgment of Dissolution of Marriage states, "The wife shall be designated the sole beneficiary of the Husband's Veterans Affairs Survivor Plan."

8.  On 5 September 2006, the applicant notified DFAS of her divorce and entitlement to the SBP.  In her letter she listed her divorce papers as an enclosure.  Additionally, she requested that DFAS notify her of any further action.  The certified mail return receipt is date stamped 11 September 2006.  On 6 November 2006, the applicant again notified DFAS of her divorce by fax.  In her letter she stated she was "deeming the election for the SBP" and notifying them within 1 year of her divorce as procedure dictated.

9.  She also provided a return receipt from DFAS, date stamped 18 June 2010.

10.  The FSM died on 12 November 2013.  The death certificate lists his marital status as married and lists someone other than the applicant as his spouse.  Additionally, the other person who is listed as his wife was notified of his death.

11.  In the processing of this case, the Board staff contacted DFAS.  A DFAS representative informed the Board staff that there was no beneficiary listed.  He offered that the divorce decree states very clearly that the applicant was awarded "Postal Service SBP" and survivor benefits from the VA.  He further stated that the applicant attempted to deem the retired pay SBP, but there was no mention of retired pay SBP in the divorce decree so that makes her attempted election invalid.

12.  Public Law 92-425, the SBP, enacted on 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.  It required that retiring members and spouses be informed of SBP options and effects.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

14.  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.  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.  Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows the FSM elected VA compensation in lieu of military retired pay.  As such, he was required to pay SBP premiums and the evidence indicates his payments were "caught-up."

2.  The evidence further shows the applicant and FSM were divorced on 25 April 2006.  Shortly thereafter, on 5 September 2006, the applicant notified DFAS of their divorce and her entitlement to SBP.

3.  Unfortunately, the Amended Final Judgment of Dissolution of Marriage stated that the applicant shall be designated the sole beneficiary of the FSM's VA survivor plan and not the SBP.  Since there was no mention of retired pay SBP in the divorce decree, DFAS considered her attempt to deem the retired pay SBP election as invalid.

4.  Further, there is a new issue in this case in that evidence indicates the FSM was remarried at the time of his death.  Therefore, absent an election to change the previous spouse coverage on his retired pay SBP to former spouse coverage prior to his remarriage, the original suspended spouse coverage would have automatically gone into effect in favor of the new spouse upon their 1-year anniversary.

5.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  ___X_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20140008412



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ABCMR Record of Proceedings (cont)                                         AR20140008412



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