IN THE CASE OF:	  

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130014412 


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 correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

* it was the FSM's job to turn in the divorce decree and he did not
* his retiree account statement shows she is his spouse, not former spouse and she cannot get the survivor benefits

3.  The applicant provides:

* divorce decree and property settlement
* Retiree account statement
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Army National Guard, the FSM enlisted in the Regular Army on 26 June 1968.  He and the applicant married on 6 May 1970.

2.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 4 May 1988, shows he enrolled in the SBP for spouse and dependent children coverage, full base amount.

3.  The FSM retired in the rank of sergeant on 31 May 1988.

4.  The FSM and the applicant divorced on 11 August 2008.  The Property Settlement states the FSM is to provide SBP coverage for the applicant.

5.  The FSM died on 29 June 2011.  His death certificate shows his marital status as divorced.

6.  The applicant provided a copy of the FSM's Retiree Account Statement, dated 2 December 2010, which shows he continued to pay SBP premiums (spouse coverage) after their divorce.

7.  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.  Elections are made by category, not by name.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

9.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although there is no evidence to show the FSM requested his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit, it appears it was the FSM's intention to provide the SBP annuity to the applicant.

2.  The FSM continued to pay SBP premiums after their divorce and he never remarried.  It would therefore be equitable to correct his records to show he requested to change his SBP coverage to former spouse coverage in a timely manner.
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:

	a.  showing the FSM made a written request to change his SBP coverage to former spouse on 1 September 2008 and the request was accepted and processed by the appropriate office in a timely manner; and

	b.  paying the applicant the SBP annuity effective 30 June 2011, the day after the FSM'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)                                         AR20130014412



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ABCMR Record of Proceedings (cont)                                         AR20130014412



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