BOARD DATE:	 29 October 2015 

		DOCKET NUMBER:  AR20140014270 


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 Survivor Benefit Plan (SBP) annuity election made by her deceased ex-spouse, a former service member (FSM), be changed to former spouse coverage and that she be provided an SBP annuity accordingly.

2.  The applicant states, in effect, she did not know and the FSM undoubtedly did not know of his requirement to inform military personnel records that he wanted to maintain her as his SBP beneficiary at the time of their divorce.  

3.  The applicant provides:

* letter of support
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* self-authored statement
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* three Defense Finance and Accounting Service (DFAS) - CL Forms 7220/148 (Retiree Account Statement)
* Final Divorce Decree
* Burton Funeral Home Selected Services Charge Sheet
* Death Certificate
* NGB Form 22 (Report of Separation and Record of Service)


CONSIDERATION OF EVIDENCE: 

1.  The FSM’s record shows he was born on 19 September 1947, and he and the applicant were married on 2 May 1969.  After having prior active duty service, he enlisted in the Army National Guard on 21 September 1972.

2.  He continuously served until he was honorably retired from the Mississippi ARNG on 18 October 1990, in the rank of sergeant first class.  He completed a total of 24 years and 18 days of creditable military service.

3.  A DD Form 1883 on file in the FSM's Official Military Personnel File (OMPF) shows the FSM elected "spouse only" SBP coverage on 20 August 1990.  It also shows he elected Option C which provided his spouse immediate coverage.  The applicant signed this document on 20 August 1990.  

4.  The FSM and the applicant were divorced on 18 March 1994.

5.  The applicant’s OMPF contains a DD Form 2656 (Data for Payment of Retired Personnel) dated 25 February 2010.  Section IX (SBP Election) shows he elected coverage via a document signed by his guardian for his former spouse.

6.  On 9 March 2010, the Chief, Transition and Separations Branch, Human Resources Command, approved the FSM’s application for retired pay.  On 9 March 2010, he was placed on the retired list effective 19 September 2007.

7.  On 10 February 2014, the FSM died.  Item 11 (Marital Status at the Time of Death) of his death certificate contains an “X” in the “Divorced” block.

8.  The applicant provides three DFAS-CL Forms 7220/148 dated 2, 6, and 7 April 2010, which show the FSM paid SBP and Reserve Component SBP (RCSBP) premiums.  The applicant’s name is listed on these forms as the beneficiary of FSM’s SBP.

9.  During the processing of this case, a staff member of the Board contacted DFAS to ascertain:

* the status of the FSM’s SBP participation and/or if he currently had any coverage in effect
* if the FSM’s SBP coverage had been terminated and, if so, why and the 
		date of that action
* the final date SBP premiums were deducted from the FSM’s retired pay


10.  On 24 April 2015, a DFAS official confirmed:

* the FSM's last withholding of SBP cost was in January 2014
* a clear out pay for arrears of retired pay that included a partial payment for the month of death (February) and a refund of SBP was made from February 2008 through January 2014.  The refund was issued to the applicant.  The SBP refund was the result of a change in beneficiary due to divorce.

11.  The applicant provides a copy of her divorce decree which shows the FSM and the applicant were granted a divorce on 18 March 1994.  The Settlement of Property Rights was mentioned in this court order; however, the applicant did not provide this document.

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.  

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.  

14.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).  

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member with existing SBP coverage has one year to provide an annuity to a former spouse by making such an election.  The FSM failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce.

2.  The evidence of record confirms the FSM initially elected SBP coverage for “spouse only” at the time of retirement.  Subsequently, he and the applicant were divorced on 18 March 1994.  Absent the Settlement of Property Rights, it is unknown if the terms of their divorce included a provision for continued SBP coverage.  However, his DFAS record confirms SBP/RCSPB premiums were deducted from his retired pay from February 2008 through January 2014, when it was terminated upon notification of his divorce and death through the applicant's request for SBP benefits.

3.  Although it is unknown if the court ordered the FSM to make a former spouse SBP election, he paid the SBP/RCSBP premiums through the date of his death.  At that time, DFAS reimbursed the applicant all prior SBP premiums made by the FSM.  His death certificate lists his marital status as divorced.  It is therefore reasonable to presume he intended to provide an SBP annuity for his former spouse (the applicant).

4.  In view of the facts of this case, it would serve the interest of justice and equity to correct the FSM's record to show he voluntarily changed his SBP/RCSBP coverage from spouse to former spouse within a year of his divorce from the applicant and provide the applicant the SBP/RCSBP annuity due as a result, minus any additional premiums due, or reimbursed to the applicant based on the changes in coverage.

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 FSM changed his SBP spouse coverage to former spouse coverage on 18 March 1994, the date of their divorce, and paying the applicant an 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)                                         AR20140014270





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ABCMR Record of Proceedings (cont)                                         AR20140014270



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