IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140009283 


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:

* she and the FSM were divorced in 2006, but they continued to present themselves as a family unit to friends and family members
* the FSM continued to pay SBP premiums until he died which indicates he intended for her to receive the annuity
* he was unaware that he needed to change his election from spouse to former spouse when they were divorced
* they were married over 24 years

3.  The applicant provides:

* Certificate of marriage
* Decree of Divorce/Stipulated Dissolution of Settlement Agreement
* FSM's death certificate
* Credit Union bank statement
* Statement from the FSM's nurse
* Statements from two individuals with the same last name as the FSM
* Statement from a registered nurse
* Statement from the FSM's cousin 
* Certificate as to Taxpayer Identification Number and Backup Withholding
* County tax bill
* FSM's Obituary
* Notice of Annuity Adjustment, Office of Personnel Management
* DD Form 1883 (SBP Election Certificate)
* Self-authored email to various individuals

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 16 January 1944. 

2.  He enlisted in the Iowa Army National Guard (IAARNG) on 20 February 1965. He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant major (SGM)/E-9. 

3.  He and Elaine, the applicant, were married on 29 May 1982. 

4.  On 22 July 1985, the National Guard Bureau (NGB) issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

5.  On 16 August 1985, he completed a DD Form 1883 wherein he indicated he was married to Elaine, the applicant, and they had a dependent child, Ashley, born in April 1983.  He elected Reserve Component SBP (RCSBP), "spouse and children" coverage, Option C (Immediate coverage), based on the full amount of his retired pay.  The back page of this form is not available for review with this case. 

6.  On 19 February 1995, he was transferred to the Retired Reserve.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 
30 years of ARNG service. 

7.  On 24 September 2003, 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 (Data for Payment of Retired Personnel).  He indicated he was married to Elaine, the applicant, and he elected coverage for spouse only based on full gross retired pay.  The FSM and a witness authenticated this form with their signatures on 24 September 2003. 

8.  On 24 October 2003, the U.S. Army Reserve Personnel Command published orders placing him on the Retired List in his retired rank/grade of SGM/E-9 effective 16 January 2004, his 60th birthday.

9.  On 20 June 2006, the FSM and applicant were divorced.  The divorce decree which incorporated their Settlement Agreement settling all the issues involved in their action for dissolution of marriage is silent with respect to the SBP. 

10.  The FSM died on 15 July 2013.  His death certificate indicates he was divorced at the time and lists the informant's name as Ashley 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.  FSM's obituary.  It states the FSM married the applicant on 29 May 1982 and is survived by her. 

	b.  Community Credit Union bank statement, dated July 2013, that shows she and the FSM had a joint account.  

	c.  A statement from a certified nurse who states the applicant helped the FSM during his stay at hospice.  During his stay, the applicant visited him on a daily basis, bringing him dinner, encouraging him, taking him home on weekends, and visiting with their daughter.  He referred to her as his wife and bride. 

	d.  A statement, dated 5 February 2014, from two individuals who have the same last name as that of the FSM.  They state although the FSM and applicant did not live together, they travelled together and attended holidays together.  They acted as a family.  The applicant was at his side all the time during his illness.

	e.  A statement from a registered nurse, dated 2 February 2014.  She states the FSM was with the applicant when he was admitted to hospice.  She was his caregiver and showed a lot of love and caring.  She visited him daily and took him to visit the children and grandchildren. 

	f.  A statement, dated 31 January 2014, from the FSM's cousin.  He essentially notes the same things the nurses noted. 

	g.  A county tax bill, dated September 2012. 

	h.  Notice of Annuity Adjustment from the Office of Personnel Management payable to the applicant in the event of his death. 

	i.  An email, dated 16 March 2014, from the applicant to various individuals soliciting their help in regard to her annuity.  

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 and children coverage at the time of receipt of his 20-year letter in 1985.  He also elected spouse SBP coverage in conjunction with his application for retired pay at age 60.  He retired in January 2004 on his 60th birthday.

2.  The FSM and the applicant were divorced in 2006 and the one page of the divorce decree provided by the applicant 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, the available portion of the 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 changed his SBP election from spouse to former spouse on 20 June 2006 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 16 July 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)                                         AR20140009283



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ABCMR Record of Proceedings (cont)                                         AR20140009283



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