BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140011733 


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 the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death.

2.  The applicant states her former husband elected "spouse" SBP coverage upon retirement in October 1984.  She and the FSM were divorced in August 1999 and their divorce decree stipulated he would change SBP coverage to former spouse coverage.  He did not make the change within one year but continued to pay SBP premiums from 1999 to date of death in January 2014.

3.  The applicant provides:

* FSM certificate of death
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Correspondence from the Defense Finance and Accounting Service (DFAS) to her and her Member of Congress
* Decree of Dissolution of Marriage and Separation Agreement

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 18 February 1945.  He and Ruza, the applicant, were married on 28 December 1966.

2.  Having had prior service, the FSM reenlisted on the Regular Army on 28 June 1979 and he held a maintenance military occupational specialty.  He served in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  On 12 July 1984, in anticipation of his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Ruza and they had a dependent child, Mark, born in January 1973.  He elected "spouse and children" SBP coverage based on a reduced amount ($300.00).  Part VII (SBP Certificate), which is required when a married member does not elect full coverage or declines coverage for spouse indicates the spouse was not available for counseling but she was informed by letter, dated 12 July 1984. 

4.  The FSM retired on 30 September 1984 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 October 1984.

5.  On 24 August 1999, the FSM and applicant signed a separation agreement.  This agreement identifies the FSM as "Petitioner" and applicant as "Respondent." Paragraph 23 of their separation agreement states: 

At the time of Husband's retirement from the U.S. Military, the parties did mutually select and procure what is known as the SBP.  Thus, upon Husband's death, Wife shall receive, until her death, the survival benefits as her sole and separate property.  Husband shall continue to irrevocably endorse and maintain his spouse as a beneficiary upon these benefits and Petitioner agrees to change the beneficiary from that of SPOUSE to FORMER SPOUSE coverage.  A copy of this Agreement shall be submitted to the United States Pay Center, and there shall be no modification of these benefits.  Petitioner shall pay all costs of the SBP.

6.  On 11 March 1999 the applicant and FSM were divorced.  Their separation agreement was incorporated into their divorce decree. 

7.  There is no indication the FSM notified DFAS of his divorce within 1 year or that he submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.  Additionally, there is no indication the applicant, now the FSM's former spouse, deemed the SBP election within one year of her divorce.

8.  On 12 January 2014, the FSM died.  His death certificate shows he was divorced at the time of death.  The informant is listed as his son "Mark." 

9.  On 16 April 2014, by letter, in reply to the applicant's correspondence regarding her eligibility to receive an annuity under the SBP of her deceased former spouse, DFAS notified her that after reviewing the FSM's pay account, they determined that she was not entitled to receive an annuity under SBP.  The letter added: 

	a.  The SBP gives retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors.  Upon retirement, the FSM elected to cover her under SBP.  However, a spouse loses eligibility as a spouse beneficiary upon divorce.  Retirees have the option to change their spouse coverage to former spouse coverage upon divorce.  For this to become effective, DFAS must receive a request from the retiree within one year of the divorce.

	b.  If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage.  The request for a deemed former spouse election must be received within one year of the divorce. A divorce decree alone does not constitute a deemed election.  Her former spouse did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by her.  Therefore, she was not entitled to the annuity. 

10.  On 6 June 2014, in a detailed letter to the applicant's Member of Congress, in reply to his letter on behalf of the applicant, pertaining to her entitlements from the military retired pay account of her deceased former spouse, DFAS stated: 

	a.  The FSM retired on 1 October 1984.  His pay records reflect he elected SBP coverage at retirement.  He was divorced in March 1999 and the requirements for former spouse coverage were not met; therefore, the applicant is not entitled to be the beneficiary of his SBP coverage.  The SBP, as outlined in Title 10, U.S. Code, Sections 1447-1455, was enacted on 21 September 1972, to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries.  Public Law 98-94, dated 24 September 1983, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage within one year of divorce.  Public Law 98-525, enacted 19 October 1984, further amended the SBP by giving the former spouse of a retiree an option to request that a former spouse election be deemed to have been made by the retiree.

	b.  There are two requirements for a deemed election to be valid.  The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP.  The second is the request for a deemed former spouse election must be received within one year of the divorce.  The divorce decree indicates former spouse benefits.  However, the FSM's pay records do not reflect receipt of the former spouse election from the FSM nor did DFAS receive a deemed election request from the applicant within one year of the divorce.  Therefore, she is not entitled as the former spouse beneficiary of the FSM's SBP.  Both requirements must be met in order to be the eligible SBP beneficiary.

11.  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.

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 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.

13.  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.

14.  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.

15.  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 applicant and the FSM were married on 28 December 1966.  When the FSM retired, he elected "spouse" SBP coverage.  He and the applicant were divorced on 11 March 1999.  Their divorce decree stipulated that he would maintain an SBP annuity for the former spouse.  Even though the FSM continued to pay the SBP premiums he did not change his SBP election from "spouse" to "former spouse" and she did not make a deemed election for former spouse coverage within one year of the divorce.

2.  Because SBP elections are by category, not by name, a spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit.  

3.  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. Additionally, his pay records show he continued to pay SBP premiums until his death which indicates he intended to provide an annuity for the applicant.

4.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from spouse to former spouse.  As such, as a matter of equity, 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 12 March 1999 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 13 January 2014, 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)                                         AR20140011733



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011733



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1