IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140011084


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 a correction of the record of her deceased former spouse, a retired former service member (FSM), to show that he made an election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states that:

* She was not aware that a deemed election for former spouse was a requirement for an SBP annuity
* She incurred extenuating circumstances and tremendous financial loss
* The FSM elected to cover her for SBP upon his retirement  
* The FSM’s Legal Will and Testament and his Advance Healthcare Directive listed her as the beneficiary

3.  The applicant provides:

* Army Review Boards Agency (ARBA) letter, dated 16 June 2015
* ARBA letter, dated 2 June 2014
* Defense Finance Accounting Service (DFAS) letter, dated 25 March 2014
* DD Form 2656-7 (Verification for Survivor Annuity), dated 3 March 2014
* DD Form 2656-10 (Survivor Benefit Plan/Reserve Component (RCSBP) Request for Deemed Election), dated 27 April 2014
* FASTSTART Direct Deposit Form, dated 3 March 2014
* W-4P (Withholding Certificate for Pension or Annuity Payments) - 2014
* Servicemembers’ Group Life Insurance Election and Certificate 
* Claim for Death Benefits – MetLife
* Divorce Decree with attachments, dated 26 June 2012
* FSM’s Last Will and Testament, dated 31 March 2009
* Advance Healthcare Directive, dated 31 March 2009
* Documentation of correspondence including email and letters

4.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The FSM retired from active service on 30 April 2012.  On the same day, he completed a DD Form 2656 (Data for Payment of Retired Personnel).  In Part IX (SBP Election), he elected spouse-only SBP coverage based on the full amount of his retired pay.  The form shows he was married to L. B. R., the applicant, at the time.  

2.   The applicant and FSM’s divorce was handled pro per by the applicant and finalized on 6 December 2012.  There was no former spouse provision in the divorce decree requiring the FSM to list her as the SBP beneficiary upon his death.

3.  On 11 January 2014, the FSM died.  

4.  The applicant submitted a DD Form 2656-10 to DFAS, requesting an SBP annuity.  On 25 March 2014, DFAS responded by provided the applicant a letter informing her that she was not entitled to receive an annuity under the SBP.  As a former spouse, she lost eligibility for an SBP annuity upon her divorce since a qualified court order never incorporated, ratified, or approved an agreement for former spouse SBP coverage.

5.  The FSM's record contains a FEGLI, showing he designated the applicant, his former spouse, as the SGLI beneficiary.  	

6.  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.  Elections are made by category, not by name.

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.

8.  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.

9.  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 does not support the applicant’s request for correction of FSM's record to show that he made a voluntary election for former spouse coverage under the SBP.

2.  Their Marital Settlement and Separation Agreement was silent regarding any requirement for either party to inform the DFAS of any election for survivor benefits.  This document did not require the applicant to be named as the former spouse under the SBP, in the case of his death.  No other mention of the pension division or election of the SBP beneficiary is made in the dissolution documents.

3.  Although the FSM elected spousal SBP coverage for the applicant prior to his retirement, he was married at that time and SBP coverage was required unless he declined coverage with spousal consent.  When the applicant and FSM divorced, there was no former spouse provision in their divorce decree requiring him to elect former spouse SBP coverage.  Therefore, the applicant did not have the right to request an SBP deemed election within one year or request an SBP annuity.

4.  The applicant appears to believe that since she was deemed the beneficiary for FSM’s SGLI, that she is also entitled to be the beneficiary for SBP.  The two programs are unrelated.  

5.  Title 10, U.S. Code, sections 1448(b)(3), and 1450(f)(3)(A), permit a person to elect to provide an annuity to a former spouse.  However, 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.  Additionally, 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.  Since the FSM nor the applicant never made a written request within 1 year of their divorce for SBP former spouse coverage, and since it was not required pursuant to the divorce decree, there is no basis for granting relief in this case.  

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 that 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)                                         AR20130015756



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ABCMR Record of Proceedings (cont)                                         AR20140011084



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