BOARD DATE: 23 April 2015
DOCKET NUMBER: AR20140011097
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, in effect, that the records of her deceased father, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states, in effect, that her father paid for the SBP benefits and intended that her mother receive them upon his death; however, after his death, her mother was informed that no deemed former spouse election was made and that she was not entitled to SBP benefits. She goes on to state that despite the amount awarded to her mother by the divorce court, the FSM always gave her more than twice that amount and his SBP was paid up when he passed away.
3. The applicant provides a two-page letter explaining her application, a response from the Defense Finance and Accounting Service (DFAS) regarding her application for an annuity, a copy of the FSMs Retiree Account Statement, a Power of Attorney, FSMs death certificate, FSMs DD Forms 214 (Certificate of Release or Discharge from Active Duty), FSMs divorce decree, FSMs marriage license and the FSMs wifes death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was retired in the rank of sergeant major on 31 March 1982 . He had served 30 years and 21 days of active service and he made an SBP election of spouse only at a reduced rate of $1200.00.
2. The FSM divorced his spouse on 1 June 1993 and the divorce decree provided that the FSM maintain his spouse as his beneficiary for his Army Retired Pay, in other words SBP.
3. The FSM married again on 29 September 1992 and remained married until her death on 13 July 2003. The FSM passed away on 16 December 2013 at the age of 80. His SBP premiums were paid up at the time of his death.
4. On 18 March 2014, officials at the DFAS notified the former spouse that she was not entitled to receive an annuity under SBP because there was no record of the FSM or former spouse making a deemed former spouse election within 1 year of the divorce.
5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
6. 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.
7. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
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. Although there is no conclusive evidence that shows a proper former spouse election was made by the FSM, the applicant, or her attorney, the available evidence suggests that it was the FSMs intention to provide an SBP annuity for the applicant.
2. The applicant has provided a copy of her divorce decree and contends that because the court ordered her to receive the benefits of the SBP she should receive them; however, that order is issued by a State court and is unenforceable when applied against conflicting Federal law. It was incumbent upon her legal counsel to provide her guidance on such matters. In any event, it is reasonable to presume that she believed that her interests were protected.
3. The FSM continued to pay SBP premiums after their divorce and although he remarried, his spouse died before he died and no one is currently receiving the annuity. It appears the FSM intended to provide an annuity to the applicant. Therefore, it would be equitable to correct the FSMs records to show he requested to change his SBP coverage to former spouse 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 made a written request to change his SBP election to former spouse on 1 July 1993 and the request was accepted and processed by the appropriate office in a timely manner
* paying the applicant (former spouse) the SBP annuity effective 17 December 2013, the day after the FSMs death
2. The Board wants the applicant and all others to know that the sacrifices made by her former husband and herself in service to the United States are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
_________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.
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