IN THE CASE OF: BOARD DATE: 7 August 2008 DOCKET NUMBER: AR20080010076 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 spouse, a former service member (FSM), be corrected to show that he changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse.” 2. The applicant states that her former spouse died on 9 February 2008 and that at the time, she found out she was not entitled to SBP payments because her former spouse did not change /update his records to show her as the former spouse. She further adds that they were divorced in 2002 [sic] and that although the divorce decree does not specifically state she would receive SBP payment, he continued to pay SBP premiums after the divorce. The agreement between her and the FSM was always that she would receive the SBP payment and that his records would always show her as the beneficiary. When he married the second time, he changed some of his records to reflect the name of his new spouse; however, he never took the SBP out of her (the applicant’s) name, because the agreement between them was that she (the applicant) would receive the SBP. 3. The applicant provides the following additional documentary evidence in support of her application: a. Self-authored statement, dated 25 May 2008. b. The FSM's Death Certificate, dated 9 February 2008. c. Separation and Property Settlement Agreement, dated 27 September 2001. d. Two letters, dated 26 and 27 February 2008, from the Defense Finance and Accounting service (DFAS) . e. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 February 2000. f. Final Divorce Decree and Order, dated 12 October 2003. g. Retiree Account Statement, dated 25 January 2008. CONSIDERATION OF EVIDENCE: 1. The FSM’s records show that he was born on 9 November 1958, enlisted in the Regular Army on 8 January 1976, and married his spouse (the applicant) on 12 April 1985. He subsequently executed a series of reenlistments in the Regular Army and was placed on the Retired List in the rank/grade of master sergeant (MSG)/E-8 on 1 March 2000. He was credited with 24 years total active service. 2. The FSM's DA Form 2656 (Data for Payment of Retired Army Personnel), dated 29 December 1999, indicates that at the time of his retirement, he elected SBP spouse coverage with a reduced base amount of $500.00. He, his spouse (the applicant), and the witness authenticated this form by placing their signatures and dates in the appropriate sections. 3. On 10 September 2001, the FSM and applicant were separated. In their Separation and Property Settlement Agreement, dated 27 September 2001, they both agreed that the FSM would pay his spouse one third of his disposable military retired pay as that term is defined in the Uniformed Services Former Spouses Protection Act, Section 1408(a)(4). Furthermore, disposable military retired pay was defined as gross retired pay less any amounts withheld on a monthly basis which were owing to the United States for fines, overpayments of active duty salary, and SBP payment. 4. On 12 October 2003, the applicant and the FSM were divorced. The Divorce Decree ordered that the Separation and Property Settlement Agreement, dated 27 September 2001, be confirmed, ratified, and incorporated, but not merged into the Final Decree of Divorce. 5. Records show that the FSM did not inform DFAS of his divorce; however, he continued to pay SBP premiums until his death on 9 February 2008, at the age of 49. 6. The FSM’s Certificate of Death, dated 9 February 2008, shows the applicant was divorced at the time of his death. 7. On 26 February 2008, by letter, a military pay technician at the DFAS Retired and Annuity Pay office notified the applicant that in closing the FSM’s retired pay account it was noticed that SBP premiums were deducted from his retired pay until the time of death and that his retired pay account showed he was not married at the time of his death. The applicant was further informed to submit a copy of the divorce decree and death certificate in order to receive a refund of the SBP cost. 8. On 27 February 2008, by letter, another military pay technician at the DFAS Retired and Annuity Pay office notified the applicant that her application for SBP annuity payment was denied because the FSM did not elect to participate in the “former spouse” SBP coverage. 9. In her self authored letter, the applicant indicates that after their divorce, the FSM married a second time and that he changed some of his records to reflect “Brxxxa” as his new spouse. 10. The applicant’s record is void of a marriage license/certificate that shows the date of his second marriage, when that marriage ended, or the terms of that divorce including any requirements, if any, to elect former spouse SBP coverage. 11. 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. 12. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (including Reservists). 13. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage. 14. Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions. 15. 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 one 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. 16. 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 one year of the date of the court order or filing involved. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that she is entitled to receive SBP benefits based on the death of her former husband, a FSM, was carefully considered. However, there is insufficient evidence to support this claim. 2. The evidence of record shows that the FSM, while still married to the applicant, elected SBP spouse coverage at a reduced amount, prior to his retirement. After retirement, he and the applicant were divorced. Their divorce decree did not obligate the FSM to change SBP coverage from spouse coverage to former spouse coverage; nevertheless, he continued to pay SBP premiums after the divorce and until his death, a period of nearly 5 years. 3. SBP elections are made by category, not by name. Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which is a change the evidence of record shows he did not make. Furthermore, the applicant indicated that the FSM was remarried after their divorce. 4. Without the decree and any agreements associated with that second marriage and divorce, the ABCMR may not grant relief. If, in divorcing his second wife, the applicant agreed to maintain former spouse SBP coverage, she would have a more direct and immediate interest in the annuity. The ABCMR does not base relief in SBP cases upon who files a claim first. Rather, the Board strives to ensure that any annuity, when paid, goes to the party whose interest is memorialized and directed by the terms of a divorce decree. Here, the applicant's property settlement and divorce decree were silent on the SBP. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xxx___ __xxx___ __xxx___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. XXX _______ _ _______ ___ 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) AR20080010076 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010076 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1