IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007672 


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:

The applicant (who died 2 months after her application) defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the record of the applicant's former husband, a deceased former service member (FSM), to show the now-deceased applicant applied for an annuity as the beneficiary of the FSM's Survivor Benefit Plan (SBP) prior to her death.

2.  Counsel states the applicant made a deemed election for the SBP on 7 March 2003 via written notice to the Military Retired Pay Office, which counsel has attached. 

3.  Counsel provides:

* letter signed by the applicant wherein she made a deemed election for SBP to the Military Retired Pay Office
* counsel's letter reinforcing the deemed election made by the applicant
* final divorce decree 

CONSIDERATION OF EVIDENCE:

1.  The FSM's records indicate he was married to the applicant at the time of his retirement from the military.  Court documents show they were married on 14 May 1984.
2.  On 23 October 1986, the FSM elected to participate in the SBP for spouse and children coverage with a reduced base amount.

3.  On 31 December 1986, the FSM was retired from the Regular Army in the rank of chief warrant officer three after completing more than 20 years of active service

4.  On 7 February 2003, the applicant and the FSM divorced in the District Court of El Paso County, TX.  A review of the divorce decree reveals the FSM was required to maintain the applicant as the designated beneficiary of the SBP.

5.  During the processing of this case, a member of the Board staff contacted the Defense Finance and Accounting Service (DFAS).  The DFAS provided multiple documents among which was:

* copy of the applicant's deemed election request for former spouse coverage, which was submitted within 1 year after the divorce
* counsel's reinforcement of the applicant's deemed election request
* applicant's and FSM's divorce decree 
* FSM's Death Certificate showing he died on 9 February 2014
* applicant's Death Certificate showing she died on 1 June 2014
* DFAS' denial of benefits letter to the FSM's widow
* widow's Marriage License
* widow's application for SBP benefits with associated documents

6.  On 12 November 2014, DFAS responded to the FSM's widow's request for an annuity based on the FSM's SBP.  The DFAS letter stated a review of the FSM's military retired pay account reflects that he elected former spouse coverage.  He elected this coverage before he married her (the widow).  The coverage for former spouse remained and was never made into spouse coverage.
  
7.  A DFAS official stated in an email to a member of the Board staff that it appears the applicant's estate had not filed for the 4 months worth of former spouse coverage she would have received.

8.  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.  Elections are made by category, not by name.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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 is received within 1 year of the date of the court order or filing involved. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant and FSM were divorced on 7 February 2003.  Evidence indicates that the FSM did not comply with the requirement to submit a former spouse election within 1 year of their divorce.  However, the deceased applicant submitted a request for a deemed election to DFAS which evidence shows was accepted as valid.

2.  The FSM died in February 2014.  DFAS records show the deceased applicant as the SBP beneficiary.

3.  Evidence shows the applicant died in June 2014 without filing for the FSM's SBP benefits.  Based on the short time period between the FSM's death and that of the applicant, as a matter of equity, it would be appropriate to correct the FSM's record to show the applicant filed for his SBP annuity prior to her death.

4.  In view of the foregoing, it would be appropriate to provide the applicant's estate the SBP annuity from the day after the FSM’s death until the date of the applicant's death.


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 former spouse filed for the FSM's SBP benefits and providing her estate an SBP annuity from the day after the FSM’s death until the date of the applicant'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)                                         AR20140007672



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ABCMR Record of Proceedings (cont)                                         AR20140007672



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