IN THE CASE OF: BOARD DATE: 21 August 2012 DOCKET NUMBER: AR20120000699 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, the former spouse of a deceased former service member (FSM), requests that she be shown to have made a timely Survivor Benefit Plan (SBP) deemed election. 2. The applicant states she never received any information or an application for properly making a deemed election at the time of her divorce. However, the divorce decree was sent to the Defense Finance and Accounting Service (DFAS) along with an application for a portion of the FSM's retired pay. The divorce decree also named her as the sole beneficiary of his SBP. 3. The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a Marriage Certificate, a 1980 DA Form 4240 (Data for Payment of Retired Army Personnel), Final Decree of Divorce, a Report of Death, Facts of Death Verification, Certificate of Death, a letter from the applicant requesting SBP benefits, the applicant's tax forms, and a DFAS SBP denial letter. CONSIDERATION OF EVIDENCE: 1. On 4 June 1955, the applicant married the FSM. 2. The FSM retired from the Regular Army based on longevity effective 1 September 1982. 3. Their divorce became final on 7 June 2006, after 51 years of marriage. 4. The final decree of divorce ordered that the applicant receive 50 percent of the FSM's disposable retired pay directly from DFAS and the FSM was ordered to continue to provide SBP benefits for the applicant. The order also directed the applicant to "apply to be deemed a former spouse beneficiary." 5. The applicant appears to have submitted the required documentation claiming a portion of the FSM's retired pay. The instructions on the application required the submission of the court order or other legal documentation directing the apportionment. However, there is no evidence that she applied to be deemed a "former spouse beneficiary." 6. The FSM died on 5 September 2011. The death certificate shows his marital status as “divorced.” Upon the FSM's death, the applicant applied to the U.S. Army Human Resources Command (HRC) to receive SBP benefits. 7. On 1 December 2011, DFAS notified the applicant they were denying her request for SBP payments because she had not made a deemed election for former spouse coverage within 1 year of her divorce. 8. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions 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. 9. 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 divorced in 2006. She was awarded 50 percent of the applicant's disposable retired pay, and the FSM was ordered to continue to provide SBP benefits for the applicant. The order also directed that the applicant "apply to be deemed a former spouse beneficiary." However, there is no evidence that a request to deem a former spouse election was ever completed and submitted to DFAS at the time of divorce. 2. Notwithstanding the applicant's failure to properly perfect her interest in the SBP, the facts remain that she was married to the FSM for 51 years, was awarded the SBP in the divorce, and there is no one with a superior vested interest. 3. It is therefore appropriate, as a matter of equity, to correct the records to show she submitted a request to be deemed a former spouse beneficiary within the required 1-year period of her 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 former service member be corrected: a. to show the applicant made a valid deemed election in a timely manner and the SBP election was converted from spouse to former spouse coverage; and b. that the applicant be paid an SBP annuity effective the day after the FSM's death minus any unpaid premiums. _______ _ _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) AR20120000699 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000699 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1