PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 DECEMBER 2001
	DOCKET NUMBER:   AR2001058416

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant is the former spouse of a deceased former service member (FSM), and requests an annuity under the survivor benefit plan (SBP).

3.  The applicant states that the SBP annuity provided for in her divorce decree has not been received due to an error in the record.  She states that her former husband elected to provide coverage under the SBP for her.  She states that the SBP was still in effect at the time of the death of the FSM.  She states that she applied for an annuity on two occasions, but received no reply.   

4.  The applicant and the FSM were married in Livermore, California on               6 March 1971.

5.  The military records of the FSM show that he had 5 years of active duty in the Regular Army and over 17 years of service in the Army National Guard.  His        chronological record of military service shows that he had over 21 years of qualifying service for retired pay at age 60 at the time of his discharge from the Army National Guard on 13 January 1965.  

6.  A DA Form 4240 (Data for Payment of Retired Army Personnel) dated           19 January 1984 shows that the FSM elected SBP coverage for the applicant, then his wife, in the full amount authorized by law.

7.  The applicant and the FSM were divorced on 15 February 1994.  The divorce decree stipulated that the FSM should cooperate to the extent legally permissible to allow the applicant to remain as beneficiary on his Army retirement benefits awarded to him as his separate property; and that the FSM would execute any lawful documents reasonably necessary to preserve the benefits of his retirement for the applicant; and that the applicant’s attorney would be responsible for determining the nature of any such documents and drafting them at the applicant’s expense.

8.  A Defense Finance and Accounting Service (DFAS) retiree account statement effective on 2 December 1998 changed the FSM’s monthly gross pay, and his monthly SBP costs from $23.06 to $23.36.  That statement indicated that he had elected to participate in the SBP and had coverage for his spouse only, and that the date of birth of his spouse was 21 March 1927, the applicant’s date of birth.  

9.  A certificate of death shows that the FSM passed away on 19 February 1999, and at the time of his death he was divorced. 

10.  The applicant applied for an annuity under the SBP, date unknown, as evidenced by a copy of a DD Form 2769 (Application for Annuity, Certain Military Surviving Spouses). 

11.  On 6 June 2000 the DFAS at Cleveland informed a Member of Congress (MC) that a spouse loses eligibility as a SBP beneficiary upon divorce, and that there is no provision in SBP which made former spouse coverage an automatic benefit – that the only means by which the divorced spouse could receive a survivorship annuity is if the retiree or the former spouse elect former spouse coverage when there is an agreement to cover the former spouse in the final decree or court approved order.  The court order itself is not enough.  The service member, or in some cases, the former spouse must submit a signed election request within one year of the divorce before coverage can begin.  The DFAS also informed the MC that the divorce of the FSM was not reported until after his death, and since there was no record of the FSM or the applicant electing to provide coverage for the applicant within one year of divorce, the applicant was not entitled to an annuity under the SBP.  The MC was also told that all SBP costs paid by the FSM were paid to his beneficiary of record.  The MC was informed that the applicant could apply to this Board for relief.  

12.  Information received from the DFAS at Cleveland on 10 December 2001 revealed that the FSM had three beneficiaries of record (his children) and that the total SBP costs were $1301.53 dating from March 1994 to January 1999.  One of his beneficiaries, a daughter, has received one-third of the SPB costs for a total of $433.84.  

13.  Public Law 92-425, the SBP, enacted 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.  The election made by the member was irrevocable.  Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the Survivor Benefit Plan to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.

14.  The Department of Defense Authorization Act of 1984 (Public Law 98-94), approved on 24 September 1984 amended SBP so military retirees could elect former spouse coverage for a spouse who was a beneficiary under the plan, provided their divorce occurred after retirement.  Retirees who were participating in SBP could elect former spouse coverage within one year from the date the divorce became final.

15.  The Department of Defense Authorization Act of 1985 (Public Law 98-525), approved on 19 October 1984, further amended SBP.  Section 644 of that law pertains to retired members who enter (in conjunction with a divorce, dissolution, or annulment) into a voluntary written agreement to provide an SBP annuity to a former spouse.  When the agreement has been incorporated in, ratified, or approved by a qualified court order, and the member then fails or refuses to make the required election, that member shall be deemed to have made such election if the DFAS receives a written request from the former spouse requesting that the DFAS implement the election.

16.  A former spouse is not automatically covered as an SBP beneficiary, even if the court orders SBP be maintained for the former spouse.  SBP coverage must be changed to former spouse coverage, either voluntarily by the retired member, or by a deemed election request from the former spouse.  

CONCLUSIONS:

1.  Neither the applicant nor the FSM made application to have SBP coverage designation changed to former spouse within one year after their divorce in 1994, as required by law.  There is no evidence that this did occur and an official at the DFAS in Cleveland avers that the records of the FSM contain no such application.  That official also stated that the divorce of the FSM and the applicant was not known until after the death of the FSM.  This Board believes, however, that the applicant and the FSM presumed that she had SBP coverage, as evidenced by the application she made for an annuity under the SBP, and also by the FSM’s retiree account statement of 2 December 1998 indicating that he had SBP coverage for the applicant.

2.  The divorce decree did stipulate that the FSM should continue to provide retiree benefits for the applicant and that he should take action to ensure that she retained those benefits.  Whether the FSM consciously or unintentionally failed to do so is not known.  A reasonable person would have to believe, however,  that had the applicant known that the FSM had failed to continue SBP coverage, and that she could have this coverage continued simply by making application, then she would have done so.

3.  The applicant was married to the FSM for some 23 years, and upon their divorce, the FSM was directed to provide SBP coverage to his former spouse.  He failed to do so.  Had she known this, and the rules concerning former spouse coverage, she would most certainly have requested this coverage. 

4.  Therefore, the record should indicate that the applicant made an election for former spouse SBP coverage within the one year period of her 15 February 1994 divorce to the FSM.  Furthermore, she should receive the appropriate annuity associated with this coverage retroactive to the date of the death of the FSM.  

5.  The applicant should be advised that she will have to reimburse the government for the SBP premiums that have been paid or are due to be paid the beneficiaries of the FSM.
 
6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned made an election for former spouse SBP coverage within the one year period of her 15 February 1994 divorce to the FSM.  Furthermore, she should receive the appropriate annuity associated with this coverage retroactive to the date of the death of the FSM.  The applicant should be advised that the DFAS will collect any SBP premiums that are due.  

BOARD VOTE:  

__INW __  __TL____  __JAM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Irene N. Wheelwright__
		        CHAIRPERSON

INDEX

CASE ID	AR2001058416	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011218	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.	346	
3.		
4.		
5.		
6.