IN THE CASE OF:	

		BOARD DATE:	    9 April 2015

		DOCKET NUMBER:  AR20140014244 


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, in effect, payment of the Survivor Benefit Plan (SBP) annuity based on the death of her former spouse.

2.  The applicant states, in effect, the following:

* she did not know that she was required to take any action at the time of the divorce, or that her status needed to be changed from spouse to former spouse
* she was named as the beneficiary 
* she and the FSM were Operation Desert Storm and Vietnam war veterans, respectively
* she did not adjust well after the war and sought help from the Department of Veterans Affairs
* she tried to get the FSM to seek help but he refused, as he was a functional alcoholic, unpredictably violent, and brutal with his rage
* she filed for divorce due to fearing for her life 
* during divorce proceedings, she said the FSM asked for her to go easy on him during the divorce negotiations because she was the designated beneficiary on his SBP and that designation was irrevocable 
* her attorney suggested filing a domestic violence suit, but she only wanted to be safe and for the FSM to get the help he needed
* she wanted the FSM to be left with his finances and reputation intact, knowing she was the sole beneficiary of his retirement plan
* she asks that the FSM's benefits be given to her, as that was his intention, and to her knowledge premiums were paid into the plan up until his death in November 2013
* she and the FSM divorced in 2006 and neither remarried

3.  The applicant provides the following:

* an undated, self-authored letter
* a letter to the applicant from the Army Review Boards Agency, Case Management Division, dated 19 May 2014
* the FSM's State of Florida Certification of Death
* DD Form 2656 (Data for Payment of Retired Personnel), pages 3 and 4 
* a letter to the applicant from Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, dated 20 March 2014
* her Final Judgment of Dissolution of Marriage [divorce decree], ordered    7 April 2006
* a self-authored letter, dated 10 February 2014, to DFAS, Retired and Annuity Pay Board
* a copy of the applicant's military spouse identification and privilege card 

CONSIDERATION OF EVIDENCE:

1.  The FSM was appointed as a commissioned officer in the Regular Army and entered active duty on 17 May 1974.  He was separated from active duty and transferred to the U.S. Army Reserve on 12 October 1978.  He was appointed as a Reserve commissioned officer of the Army, and he re-entered active duty on 30 September 1985. 

2.  The FSM and the applicant were married on 6 May 1995.  

3.  On 26 September 1995, the FSM completed a DD Form 2656 and elected to participate in the SBP for spouse coverage only, based on the full amount of his retired pay.  The applicant is listed as his spouse.  

4.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired by reason of voluntary early retirement on 31 December 1995.  

5.  The FSM and the applicant were divorced on 7 April 2006.  The available divorce document provided by the applicant does not address the SBP.

6.  The FSM died on 1 November 2013.  The death certificate indicates he was divorced at the time of death.  Additionally, there is no indication in his records that he remarried subsequent to his divorce from the applicant.

7.  The applicant provided a letter from DFAS, dated 20 March 2014, in which she was informed that she was not entitled to receive an annuity under the SBP because the FSM's military retired pay record reflected he did not make a request to change his election from spouse to former spouse coverage nor was a divorce decree received awarding her the SBP, at which time either the applicant or her attorney would have to have deemed the election of former spouse coverage within 1 year of the date of divorce. 

8.  A DFAS records review indicates that the FSM continued to pay SBP premiums, for spouse coverage, through the date of his death.

9.  The applicant provided a self-authored letter, dated 10 February 2014, to DFAS, Retired and Annuity Pay Board, in which she asked for reconsideration to allow her the benefits that have accrued as the designated beneficiary to the FSM's SBP.

10.  The applicant submitted a previous application to the Army Board for Correction of Military Records on 14 April 2014; however it was administratively closed by letter, dated 19 May 2014, due to insufficient evidence/documents needed to support the request, which the applicant provided with this application.  This document outlines the need for a death certificate and DD Form 2656, which the applicant provided. 

11.  The applicant also provided a copy of her military spouse identification and privilege card.    

12.  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. 

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 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.

14.  Title 10, U.S. Code, section 1448(b)(3) 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's request for payment of an SBP annuity, based on the death of her former spouse, was carefully considered.

2.  The evidence of record shows the FSM elected to participate in the SBP for spouse coverage, based on the full amount of his retired pay, at the time of his retirement in December 1995.  On 7 April 2006, he and his spouse were divorced.  There is no indication that their divorce degree obligated him to change his SBP from spouse coverage to former spouse coverage.  

3.  The applicant contends that it was the FSM's wish during their divorce proceedings that the applicant would receive the SBP upon the FSM's death.   Unfortunately, the FSM did not make a former spouse election within 1 year of their divorce.  

4.  It was Congress' intent in establishing SBP to provide for those spouses who supported the military member during his or her military career.  After their divorce on 7 April 2006, the FSM continued to pay SBP spouse coverage premiums until his death, even though he was not required to do so.  His death certificate shows his marital status as divorced

5.  There is evidence to show it was the FSM's intention to provide SBP coverage for the applicant in the event of his death.  Therefore, as a matter of equity, it would be appropriate to correct his records to show he changed his SBP annuity enrollment election from "spouse" to "former spouse" coverage within 1 year of his divorce, and pay the applicant the SBP annuity. 
  



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 submitted the appropriate request to change his SBP election from "spouse" to "former spouse" within 1 year of his divorce on 7 April 2006; 

     b.  showing his request was received by DFAS and processed by the appropriate office in a timely manner; and 

     c.  paying the applicant the SBP annuity retroactive to 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)                                         AR20100013902



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ABCMR Record of Proceedings (cont)                                         AR20140014244



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