BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140019539 


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:

* their divorce decree stipulated that the FSM would change the SBP coverage from spouse to former spouse
* she supported her former husband for 17 years and when he retired in 2000, they discussed the SBP option and they were told the SBP will never be cancelled
* in January 2010, her former husband had depression and she worked with him to get help but he refused
* despite their 26 years of marriage, she gave him an ultimatum to seek help or she would get a divorce; they were ultimately divorced in July 2010
* she went to Robbins Air Force Base and updated DEERS to show she became a former spouse but she did not sign anything waiving her right to the SBP
* she does not remember anyone telling her about a "deemed election"; if she had, she would have signed the documents to maintain the SBP
* her former husband died in July 2013 at age 55 and she is now denied the SBP that she understood she would get upon his death
* she was told a deemed election is not on file; she does not even know what a deemed election is and where or how it would have been obtained
* her former husband was undergoing intensive psychological counseling and may not have realized the SBP discontinuance 
* she did what she was told to do in terms of paperwork and her former husband's intent was to award her the SBP

3.  The applicant provides:

* FSM's certificate of death
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* correspondence to/from the Defense Finance and Accounting Service (DFAS) to her and her Member of Congress
* Total Divorce Judgment and Decree
* her military Identification and Privilege Card 
* October 2009 Retiree Account Statement 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 24 March 1958.  He and Deborah, the applicant, were married on 19 March 1983.

2.  Having had prior service, the FSM enlisted on the Regular Army on 27 January 1983 and he held an infantry military occupational specialty.  He served in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  His SBP election is not available for review with this case.  However, other evidence indicates at some point, in anticipation of his upcoming retirement, he appears to have completed a DD Form 2656 (Data for Payment of Retired Personnel).  He appears to have indicated he was married to Deborah and he elected "spouse and children" SBP coverage based on the full amount. 

4.  The FSM retired on 30 September 2000 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 October 2000.

5.  The FSM's October 2009 Retiree Account Statement shows he paid an SBP premium of $125.03, spouse only cost, and that this was his 108th month toward his 360 months of paid up SBP.  The applicant's name is also listed as the arrears of pay beneficiary. 

6.  On 11 May 2010, the FSM and applicant signed a contract of settlement agreement.  This agreement identifies the applicant as "Plaintiff" and the FSM as "Defendant."  Section 3(G)(5) of their agreement states: 
	a.  The husband shall remain the sole owner of his military retired pay; however, he intends to maintain the Survivor's Benefit for the wife.

	b.  The wife shall be required to complete a "Deemed Election" Form which changes her from "spouse" to "former spouse" for the purposes of these benefits. 

7.  On 2 July 2010, the applicant and FSM were divorced.  Their settlement agreement was incorporated into their divorce decree. 

8.  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 1 year of her divorce.

9.  On 28 July 2013, the FSM died.  His death certificate shows he was divorced at the time of death.  The informant is listed as his son "Allan." 

10.  On 30 July 2013, the applicant visited a Retirement Services Officer (RSO) at MacDill Air Force Base, FL.  The RSO provided her all the necessary documents to complete in order to claim the SBP annuity.  

11.  On 26 September 2013, by letter, DFAS responded to the applicant that a review of the FSM's retired pay account reflected the FSM did not elect former spouse SBP coverage and although the divorce decree stated she must deem the election, there is no evidence she did so.  The DFAS official also explained the SBP, its eligibility categories, and the deemed election process. 

12.  On 8 October 2013, by letter to DFAS, the applicant again contended that her divorce decree gave her the SBP and that she went to the DEERS office shortly after their divorce and changed her status to former spouse. 

13.  On 9 January 2014, by letter, DFAS responded to the applicant and stated that their office did not have a copy of the divorce decree where the SBP was awarded to her in the settlement.  Additionally, DFAS did not have the deemed election from her asking for the SBP to be continued.  A deemed election is just a letter stating that she wanted the coverage to continue and that it was awarded to her in the divorce decree.  Additionally, the FSM asked for the deductions for the SBP to be stopped on 2 July 2010.

14.  On 27 January 2014, by letter, DFAS explained that in order for the former spouse to be eligible for the SBP annuity, the member would have to request in writing to change the SBP election from spouse to former spouse or the divorce decree has to award the SBP, at which time she would have had to deem the election within 1 year of her divorce.  The records show the FSM did not change the election and she did not deem the election. 

15.  On 4 September 2014, by letter to the applicant's Member of Congress, a DFAS official provided an overview of the SBP law and explained that there are two requirements for a deemed election to be valid.  The divorce decree must specifically indicate the former spouse is entitled to the SBP and the request for deemed election must be received within 1 year of the divorce.  There is no evidence the applicant contacted DFAS to deem the election.  Additionally, the FSM did not notify DFAS to change his SBP beneficiary election from spouse to former spouse.  

16.  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.

17.  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.

18.  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.

19.  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.

20.  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 19 March 1983.  When the FSM retired, he elected "spouse" SBP coverage.  He and the applicant were divorced on 2 July 2010.  Their divorce decree stated that the FSM intended to maintain the SBP benefit for the applicant but did not obligate the FSM to maintain an SBP annuity for the former spouse.  However, it did stipulate that the applicant was required to complete a deemed election to change her from spouse to former spouse for the purpose of the SBP benefit.  

2.  After their divorce, the FSM asked DFAS to stop his SBP premiums.  Because SBP elections are irrevocable (except in certain situations), spouse coverage was not terminated.  Additionally, because he was divorced, he asked DFAS to suspend payment of the premiums.  DFAS did so effective 2 July 2010.  

3.  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.  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.  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 1 year of the divorce.  The FSM did not do so. 

4.  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 1 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.  

5.  There are two requirements for a deemed election to be valid.  First, the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP.  The applicant's divorce decree does not award her the SBP.  Second, the request for a deemed former spouse election must be received within 1 year of the divorce.  The applicant did not deem the election within 1 year of her divorce. 

6.  However, there is no evidence the FSM remarried.  In other words, there is no widow with a superior interest here.  Regardless of the applicant's failure to deem the election in a timely fashion, she should get relief as a matter of equity.  Any unpaid premiums can be deducted from 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 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 1 year of her divorce from the FSM and DFAS timely received and accepted her deemed election
* paying the applicant the SBP annuity retroactive to the day after the FSM's death, less any premiums incurred as a result of this correction



      _______ _   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)                                         AR20140019539



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ABCMR Record of Proceedings (cont)                                         AR20140019539



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