BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140013785 


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 deceased former service member (FSM), requests correction of the FSM's records to show a former spouse Survivor Benefit Plan (SBP) election was submitted and approved within one year of their divorce.

2.  The applicant states their divorce decree awarded her the SBP.  She contends she was never told by the FSM or by the Defense Finance and Accounting Service (DFAS) that she needed to make a deemed election for the SBP.

3.  The applicant provides:

* divorce decree
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from DFAS, dated 9 June 2014
* DFAS SBP information pertaining to the FSM
* self-authored statement
* DD Form 262-7, dated 21 November 2013
* U.S. Postal Service certified mail receipt 
* several checking account statements 
* several statements of accounts

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 9 February 1976.  The FSM and the applicant married in 1981.

2.  On 21 November 1995, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) in which he elected to enroll in the SBP for spouse only coverage.  The FSM retired on 29 February 1996.

3.  The FSM and the applicant divorced on 5 November 1997.  The divorce decree shows the court ordered that SBP coverage be maintained for the applicant.  

4.  The FSM died on 6 November 2013.  His death certificate shows he was divorced and the applicant was the informant.  

5.  According to information obtained from DFAS, the FSM's account listed no beneficiary for SBP as of 5 November 1997.  

6.  In a letter dated 9 June 2014, DFAS informed the applicant that as of the date of the letter DFAS had not received an SBP deemed election.  She was also informed that spouses lose eligibility as an SBP beneficiary upon divorce and that there are no provisions in the SBP which makes former spouse coverage an automatic benefit.  The only means by which the divorced spouse may receive an SBP annuity is if the former spouse coverage is elected by the retiree or a former spouse deemed election request.  A signed deemed election request must be submitted by the former spouse before coverage can be established.  She was further informed that a request to deem an election must be received from the former spouse within one year from the date of the court decree which awards the coverage.  

7.  She provided the following statements:

	a.  In 1997, upon the end of her 16-year marriage to the FSM and the completion of their divorce, their agreement was that the FSM would file all the paperwork with the Army.  When he paid her the monthly child support, he included the 38.7 percent of his retirement that she was awarded, minus $100 for the SBP monthly payment.

	b.  In 2006, their youngest daughter graduated from high school and child support payments ended.  The FSM began paying her the $300 per month the 38.7 percent minus the $100 for SBP payment that was her responsibility.  This amount continued until 2012.  In 2012, she and the FSM discussed changing the SBP beneficiary.  He stated he was going to ask his current girlfriend to marry him and the girlfriend deserved the SBP if the girlfriend was going to be his wife. 

	c.  She had been making the payments and she asked him if he really believed the new girlfriend would assist their children financially if it was needed (they had one daughter in law school and another in community college at the time).  He did not believe that his girlfriend would assist the children and they agreed to leave the SBP as it was.  He decided since she was making the payments, he could open a civilian policy for his girlfriend (they did not marry and no policy was obtained).

	d.  She called the Army and she was told that her signature would be needed to change the beneficiary.  When the FSM notified the Army in 2012 of their divorce, she started receiving payments from the Army.  She had requested that the $100 for SBP be taken out of her check but she was told the money had to come out of the FSM's check.  She and the FSM decided that she would pay their daughter's law school $100 a month on his behalf.  

	e.  She and the FSM stayed close throughout the years.  They even celebrated holidays together.  During power outages, he stayed with her and they spoke on a regular basis.  Towards the end of his life, he was receiving disability from social security along with his retirement check.  He was living in a dilapidated trailer and he had difficulty breathing.  He was unable to save enough money to move out of the trailer so with her financial assistance, she and her daughters moved him into an apartment and had the trailer demolished.

	f.  The FSM passed away a few months after moving in.  At the time of his death, he did not have any insurance policy other than the SBP.  She believes, after many conversations over the years, that he believed the SBP was still being paid for.

	g.  After the FSM died, she sent the required paperwork (DD Form 2656-7 (Verification for Survivor Annuity)) to DFAS.  She received notification that she was not authorized this benefit.  She then went to retirement services at Joint Base Lewis-McChord, WA, where she received assistance.  At that time, she was informed that the FSM had stopped the allotment in 1997.  There is written documentation confirming that 212 payments had been made to the Army for a total of $20,833.  

	h.  As stated above, she also believed that she was continuing the payments of $100 when she was giving her daughter $100 per month on behalf of the FSM.
She is enclosing "copies of bank statements for 6 months at a time."  "Showing the payments with James and with our daughter."
8.  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.  Elections are made by category, not by name.  

9.  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.  

10.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

11.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

12.  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 one 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.

13.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected SBP spouse-only coverage on 21 November 1995.  The FSM and the applicant divorced on 5 November 1997.  The divorce decree required the FSM to maintain SBP coverage for the applicant.  However, there is no evidence showing the FSM complied with the court order by changing his election from spouse to former spouse coverage.  There is also no evidence the applicant made a deemed election within one year of the court order as required by law.

2.  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.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

3.  Spouses and former spouses are not routinely counseled concerning the need to file a deemed election with one year of a divorce.

4.  SBP elections are made by category, not by name.  Therefore, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  However, because the FSM was not married at the time of his death, there is no widow to raise a claim pertaining to SBP benefits.  Accordingly, equitable relief is appropriate.

5.  The applicant indicated she was informed the FSM stopped making SBP payments in 1997.  Therefore, she is advised that all SBP premiums due since the FSM’s retirement must be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant, despite the terms of the divorce decree.  

BOARD VOTE:

___X_____  __X______  __X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 applicant made a deemed election within one year of her divorce and the FSM and DFAS timely received and accepted her deemed election.



      _______ _ 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)                                         AR20140013785



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ABCMR Record of Proceedings (cont)                                         AR20140013785



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