BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140017623 


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Numbers AR20130002952, dated 24 September 2013.  Specifically, she requests correction of her former spouse's records, a deceased former service member (FSM), to show her as the eligible former spouse beneficiary for his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states the FSM showed a clear intent for her, his former spouse, to receive the SBP annuity.  Because she was not aware of the requirement to notify the Defense Finance and Accounting Service (DFAS) within 1 year of the divorce, her application for the SBP annuity was denied by DFAS.  

3.  The applicant provides a notarized sworn affidavit from her son.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130002952 on 24 September 2013.

2.  The applicant provides a notarized sworn affidavit from her son renouncing rights to the SBP benefit.  This document was not previously presented to the Board.  Therefore, this document is new evidence which warrants consideration by the Board.  

3.  In the previous Record of Proceedings it was noted that:

	a.  The applicant and the FSM married on 25 March 1981.  The FSM retired on 31 January 1992.

	b.  The FSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel) that show in:

* Part V (SBP Election), item 14, the FSM was married and had dependent children
* Part V, item 15b, the FSM elected spouse and dependent children coverage
* Part V, item 16, the FSM elected to have an annuity based on the full amount of his retired pay
* Part V, item 17a, (Name of Spouse/Former Spouse), the name of the applicant
* Part V, item 17e (Dependent Children), a son born in May 1984 and a son born in May 1991
* Part VI (Certification), the FSM certified with full knowledge the information appearing on the form by signing the form on 29 October 1991
* Part VI bears a witness signature
* Part VII (SBP Certificates), item 24 (required when a married Soldier elects reduced coverage or declined coverage for spouse), that the applicant did not sign the form which indicates the FSM's SBP election was for full coverage   

	c.  A Statement of Spousal Concurrence shows that on 7 November 1991, the applicant concurred with the FSM's election of spouse and children coverage based on the full amount of his retired pay.

	d.  A Retiree Account Statement, dated 4 September 2008, shows the FSM was paying SBP premiums for spouse and children SBP coverage.  The statement lists the applicant as his spouse.

	e.  The District Court of El Paso County, CO, ordered dissolution of the marriage between the applicant and the FSM on 6 April 2010.  A separation agreement completed in November 2009 was incorporated into the divorce decree.  It shows the applicant was awarded a portion of the FSM's disposable military retired pay and that the FSM would continue to pay for the SBP.

	f.  There is no evidence showing the FSM changed his election from spouse and children to former spouse and children coverage.  There is also no evidence the applicant made a deemed election within one year of their divorce as required by law.

	g.  The applicant provided a Certificate of Death showing the FSM died on 6 February 2012.  The certificate shows the FSM was married at the time and that the spouse listed is not the applicant.

	h.  In a letter dated 11 July 2012, the applicant requested to the Defense Finance and Accounting Service (DFAS) that she be granted an SBP annuity based on the separation agreement.  

	i.  In a letter dated 14 August 2012, DFAS denied her request and informed her that in order for a former spouse to be eligible for the SBP, the former spouse had to be awarded the SBP in the divorce decree and the applicant or her attorney would have to deem her election for former spouse SBP coverage within 1 year of the date of the divorce.  Their settlement agreement did not specifically award her SBP coverage.  It only states the retiree must continue to pay SBP premiums.  Records on file at DFAS reflected the retiree's SBP election was for spouse coverage and they did not receive a deemed election from her within      1 year of the divorce.  

	j.  During the processing of the previous case, a member of the Board staff contacted DFAS.  DFAS indicated the FSM was married to his widow for less than 1 year at the time of his death.  DFAS further indicated that a son, a student, was receiving the SBP annuity.

4.  The Board concluded the following:

	a.  The divorce decree, which includes the separation agreement, appears to stipulate the applicant would remain the beneficiary for the FSM's SBP benefit.

	b.  There is no evidence the FSM attempted to comply with the divorce decree by submitting a request to DFAS to have his SBP election changed from spouse and children to former spouse and children or that the applicant requested a deemed election within 1 year of their divorce.  

	c.  The FSM's widow is not a qualified beneficiary due to the short length of their marriage.  However, the FSM's son has been receiving the SBP annuity.  Therefore, the Board may not divest the FSM's son of his interest in the SBP without a court order or other documentation indicating he voluntarily relinquishes his right to the SBP annuity.  
5.  The Board voted to deny relief based on the aforementioned facts.  

6.  She provided a notarized sworn affidavit from her son, dated 20 September 2014, renouncing his right to the SBP benefit.

7.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  It required that retiring members and spouses be informed of SBP options and effects.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

8.  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.  

9.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

10.  Title 10, U. S. Code, Section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.  Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM elected spouse and children SBP coverage on 21 October 1991.  The FSM and the applicant divorced on 6 April 2010 and, by fair implication, 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 showing the applicant made a deemed election within 1 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 1 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.  

5.  Information obtained from DFAS indicates the FSM was married at the time of his death; however, due to the short length of the marriage (less than 1 year), his widow is not a qualified SBP beneficiary.  Based on this fact, and the fact that the FSM's son renounced his right to the SBP annuity, equitable relief is appropriate at this time.  

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 amendment of the ABCMR’s decision in Docket Number AR20130002952, dated 24 September 2014.  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 1 year of her divorce 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)                                         AR20140017623



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ABCMR Record of Proceedings (cont)                                         AR20140017623



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