IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150003158 


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 elected former spouse Survivor Benefit Plan (SBP) coverage.  

2.  The applicant states, in effect:

	a.  She and her former husband, the FSM, were divorced on 17 January 2001.  In May 2001, she submitted a DD form 2656-10 (SBP/Reserve Component SBP (RCSBP) Request for Deemed Election) and a copy of her divorce judgment to the Defense Finance and Accounting Service (DFAS) for a deemed election for former spouse coverage.  She received a letter from DFAS dated 4 December 2001 confirming that her documents had been received and the former spouse coverage was implemented retroactive to her divorce date.  Her former spouse's SBP election was then changed from spouse coverage to former spouse coverage.  

	b.  The FSM died on 12 November 2014 and shortly after that she received a statement from DFAS in regards to the payments that she was receiving in conjunction with her ex-husband's retirement pay.  The letter informed her that the payments would stop due to her ex-husband's death.  It was at that time that she contacted DFAS by telephone in regards to her former spouse SBP coverage to gain information on how to apply for her benefits.  She was informed that the system showed there was no beneficiary on the retiree's account.  

	c.  She sent a letter to DFAS in December 2014 asking for a detailed explanation as to how she originally received a letter from them stating that her deemed election was implemented and now, at the death of her ex-husband, she was being told that there was no beneficiary in regards to the SBP.  She received a letter from DFAS on 16 December 2014 which stated that after a review it has been determined the wording in the divorce decree was insufficient to establish that the court ordered the FSM to provide former spouse SBP coverage for her.  It further stated that she may request and submit an amended divorce decree from a court of competent jurisdiction or she may apply to the Army Board for Correction of Military Records and request that the error or injustice regarding the SBP election be corrected.  

	d.  She is requesting that error and injustice in regard to her ex-husband's SBP coverage be corrected as she did everything that she was requested to do in deeming her as the former spouse for SBP coverage.  At no time before her husband's death did DFAS inform her that the divorce decree was incorrect, nor was she ever informed that the coverage was changed from former spouse to no beneficiary.  If this information had been provided to her when it was noticed by DFAS she would have taken care of the matter at that time.  Now, 14 years later, she is being informed about the issue only after inquiring.  Her ex-husband was a resident of the State of North Carolina and she resided in this state as well; however they were divorced by the State of Florida.  The State of Florida has jurisdiction over her dissolution of marriage.  She wants the Board to resolve this issue, because a lot of difficulty would be involved in having the State of Florida resolve the matter.  Not only would she have to attain legal representation through this State, she also has to deal with the complexity of getting an amended court order against a deceased person.  DFAS was well aware of the issue and never informed her at the time and now she is the one who has to deal with the tribulation of trying to get back what was originally given to her.

3.  The applicant provides:

* Letter, dated 4 December 2001, from DFAS
* Letter, dated 16 December 2014, from DFAS
* Final Judgment and Dissolution of Marriage
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 27 November 1953.  He and Belinda, the applicant, were married on 1 July 1973.

2.  Having had prior service, the FSM enlisted in the Regular Army on 24 February 1976. 

3.  On 6 May 1993, in connection with his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel).  He indicated he was married to the applicant and they had three dependent children. He declined SBP coverage.  His spouse, the applicant, was not available for counseling; however the DA Form 4240 shows the entry "Spouse not available for counseling, informed by letter 6 May 1993" and the signature of the counselor. 

4.  The FSM retired on 31 May 1993 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 June 1993.

5.  On 17 January 2001, the FSM and applicant were divorced in the State of Florida.  Their divorce decree states in Section VI (Insurance) "the husband shall also continue to pay and deduct SBP costs from his share of the military retired pay.  The husband shall be entitled to a credit against the wife's alimony or arrearages for one-half of such SBP costs." 

6.  The applicant provides a "Stipulations" document, dated 24 January 2001, attached to her divorce decree.  It states: 

* Husband will continue by automatic deductions from his portion of the military retired pay all SBP benefits, child support arrearages as provided by District Court Division in North Carolina 
* Wife will give husband a credit against alimony arrearages for 1/2 of the costs of the SBP
* Wife is entitled to one-half husband's military retired benefits 

7.  On 4 December 2001, by letter, an official at DFAS, Cleveland Center, informed the applicant that an SBP election naming her the beneficiary had not been received from her former spouse.  Therefore, based on her deemed election and in compliance with Title 10, U.S. Code, section 1459(f)(3), coverage was implemented retroactive to her divorce date. 

8.  The FSM died on 12 November 2014.  His death certificate shows the applicant's name as the informant and the relationship as ex-spouse. 

9.  On 16 December 2014, by letter, DFAS informed the applicant that after a review of the FSM's pay records, it was determined that the wording in the divorce decree was insufficient to establish that the court ordered the FSM to provide former spouse SBP coverage for her.  She was advised to request an amended divorce decree from a court of competent jurisdiction or apply to this Board.  

10.  According to the FSM's retired pay records: 

* at the time of the FSM's retirement, a switch was being made to consolidate pay records to DFAS
* a record on microfiche shows the FSM had spouse coverage in 1995 and paid SBP premiums at the spouse rate for 92 months
* he did not make a former spouse election 

11.  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.

12.  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.

13.  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.

14.  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.

15.  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 1 July 1973.  When the FSM retired in May 1993, he declined SBP coverage and his spouse at the time, the applicant, was not available for counseling, but she was informed by letter, dated 6 May 1993.  Nevertheless, based on the FSM's historical pay records, it appears at some point he elected enrollment, had spouse SBP coverage, and paid SBP premiums for 92 months (7 years and 6 months).

2.  Years after the FSM retired, he and the applicant were divorced.  Their divorce decree contains a stipulation that the FSM would continue automatic deductions for SBP benefits from his portion of the military retired pay.  

3.  At the time of her divorce, the applicant provided a copy of the divorce document to DFAS and requested a deemed election.  DFAS responded positively acknowledging that an SBP election naming her the beneficiary had not been received from her former spouse and based on her deemed election and in compliance with the law, coverage was implemented retroactive to her divorce date. 

4.  The FSM died on 12 November 2014.  When the applicant contacted DFAS for the SBP annuity, DFAS informed her that after a review of the FSM's pay records, it was determined that the wording in the divorce decree was insufficient to establish that the court ordered the FSM to provide former spouse SBP coverage for her.  She could request an amended divorce decree from a court of competent jurisdiction or she could apply to this Board. 

5.  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.   

6.  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.  

7.  Notwithstanding DFAS’s 16 December 2014 letter, it is clear that she was awarded SBP coverage in her divorce.  The court directed SBP payments be taken from the FSM’s retired pay and that he receive credit for his half of the payment against his alimony.  The only purpose the language could have had was to award the applicant SBP coverage.  At a minimum, it captured the parties’ and the court’s intent to award the applicant the SBP coverage. 

8.  It is clear that the intent was the applicant would be awarded SBP coverage and she relied on DFAS’ initial response, it is appropriate as a matter of equity to spare her an unnecessary trip to court by correcting the FSM's record to show he voluntarily changed his SBP coverage to former spouse coverage with 1 year of the divorce. 

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 made a former spouse SBP election within 1 year of his divorce from the applicant, in January 2001
* showing DFAS timely received and accepted his former spouse’s SBP election
* 
paying the applicant the SBP annuity retroactive to the day after the FSM's death, less any premiums incurred since January 2001 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)                                         AR20150003158



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ABCMR Record of Proceedings (cont)                                         AR20150003158



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