IN THE CASE OF:    

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140021639 


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 the divorce and payment of the SBP annuity based on his death.

2.  The applicant states their divorce decree states that she is the sole recipient of his benefits after his death.  She was notified that no further action was required.  Her attorney told them the divorce decree was all that was legally needed.  This occurred in April 2002.  The FSM paid into the SBP and she should be eligible for the annuity.  His retirement is her sole income.  She is not employed and she has two disabled children who also depend on her.  

3.  The applicant provides:

* Notarized statement from current spouse (widow)
* Divorce decree
* Death certificate 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 3 March 1939.  He and Trudy, the applicant, were married on 8 October 1962.


2.  Having had prior service, the FSM's records show he was appointed as a commissioned officer of the Army and entered active duty on 13 January 1967.  He served in a variety of command or staff assignments and he attained the rank of colonel (COL). 

3.  On 27 January 1993, in anticipation of his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Trudy and they had three dependent children (Krista, was born in January 1975; Ryan, was born in February 1977, and Ted, was born in April 1978).  He elected "spouse and children" SBP coverage based on a reduced amount ($378.00).  Part VII (SBP Certificate), which is required when a married member does not elect full coverage or declines coverage for spouse indicates the spouse was available for counseling but she did not place her signature on the form. 

4.  The FSM retired on 31 January 1993 and he was placed on the Retired List in his retired rank of COL on 1 February 1993. 

5.  On 28 February 2002, the FSM and applicant were divorced.  Their divorce decree states in paragraph 14, the FSM's military retirement benefit accumulated during the parties' marriage shall be equally divided between the parties and the applicant shall be awarded as her sole and separate property, 50 percent of any and all the FSM's disposable retired pay, as defined in Title 10, U.S. Code, section 1408(a)(4) which disposable or retired pay or retainer pay the FSM has accrued during the parties' marriage. 

6.  There is no indication the FSM notified the Defense Finance and Accounting Service (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 one year of her divorce.

7.  On 7 November 2014, the FSM died.  His death certificate shows he was married to Evva at the time of death.  

8.  The applicant provides a signed and notarized statement, dated 2 March 2015, from the FSM's widow, Evva, in which she states:

This letter is in support of [Applicant's] appeal concerning the disbursement of [FSM's] survivor benefits.  My husband, [FSM], born on 3 March 1939, passed away November 7, 2014.  [FSM] and his first wife [Applicant] divorced on February 28, 2002.  In the divorce decree, [Applicant] was named as the beneficiary of his survivor benefits.  The $347.00 monthly distributions are currently remitted to me.  Instead, the distributions should be remitted to [Applicant].  The aim of this letter is to appraise you I do not contest [Applicant's] appeal. 

9.  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.

10.  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.

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 retiree had elected spouse coverage at retirement or was still serving 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 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.

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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and the FSM were married on 8 October 1962.  When the FSM retired, he elected "spouse and children" SBP coverage based on a reduced amount.  He and the applicant were divorced on 28 February 2002.  Their divorce decree did not stipulate that the FSM would maintain an SBP annuity for the former spouse.  It stated she would be awarded 50 percent of his retired pay. Even though the FSM continued to pay the SBP premiums he did not change his SBP election from "spouse" to "former spouse" and she did not make a deemed election for former spouse coverage within one year of the divorce.

2.  The SBP, as outlined in Title 10, U.S. Code, Sections 1447-1455, was enacted on 21 September 1972, to allow retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries. Public Law 98-94, dated 24 September 1983, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage within one year of divorce.  Public Law 98-525, enacted 19 October 1984, further amended the SBP by giving the former spouse of a retiree an option to request that a former spouse election be deemed to have been made by the retiree.

3.  There are two requirements for a deemed election to be valid.  The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP.  The second is the request for a deemed former spouse election must be received within one year of the divorce.  The divorce decree indicates she would be awarded 50 percent of his retired pay; it does not indicate former spouse benefits.  The FSM's pay records do not reflect receipt of the former spouse election from the FSM nor did DFAS receive a deemed election request from the applicant within one year of the divorce.  Both requirements must be met in order to be the eligible SBP beneficiary.

4.  Because 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.  Once the FSM and the applicant were divorced she was no longer his spouse and no longer an eligible SBP beneficiary. 

5.  Nevertheless, the FSM's pay records show he continued to pay SBP premiums until his death which indicates he intended to provide an annuity for the applicant.  Additionally, although the FSM remarried and his widow is currently receiving the FSM's SBP annuity, she submitted a statement relinquishing her right in favor of the applicant.  

6.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from spouse to former spouse.  As such, as a matter of equity, his records should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Additionally, the former spouse – the applicant – should be paid the SBP annuity based on the FSM's death.


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 changed his SBP election from spouse to former spouse on 28 February 2002 and the request was received and processed by the appropriate office in a timely manner; and

	b.  paying the applicant the SBP annuity retroactive to 8 November 2014, 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)                                         AR20140021639



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ABCMR Record of Proceedings (cont)                                         AR20140021639



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