IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150003993 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, in effect, entitlement to an annuity under the Survivor Benefit Plan (SBP). 2. The applicant states: a. She and her former spouse were married for 29 years, 25 years of which he served in the Army. He retired on 31 October 2008 and they were divorced on 24 November 2009. He had always promised to take care of her because of her medical conditions which left her disabled. He did that with their divorce decree noting that "the retired pay would cease at the death of either party, subject to the SBP." He passed away on 29 November 2014. b. At the time of his death, he was paying a monthly SBP premium of $221.21 which stated she [the Applicant], with the date of birth (DOB) , was the beneficiary of the SBP for 100 percent (%). However, he had not changed her status from spouse to former spouse within 1 year from the date of their divorce. During the 1 year timeframe, he was in a serious car accident on 1 June 2010 from which he never completely recovered. During his first hospitalization, he was diagnosed with leukemia and had his spleen removed. After multiple hospitalizations, he had his colon removed and had a very difficult time until his death. c. She suffers from several disabling conditions, is not able to work, lives on a fixed income, and is experiencing severe financial hardship. d. In a letter to her congressman from the Defense Finance and Accounting Service (DFAS), Mr. DFM stated the divorce decree they had on file did not mention the FSM’s SBP account. However, she contends it does mention SBP. Up until 3 days after her former spouse’s death, she did not know he failed to change his SBP election from spouse to former spouse and did not know she was supposed to "deem the election for former spouse coverage." She never received anything from DFAS except a small card at the end of the year stating what her new monthly amount [of his retired pay] would be on the first of the next year. e. DFAS also stated they never received the required forms from her but she never received any forms from DFAS [after her former spouse died] when her daughter was told she would. She also called the SBP phone number requesting forms and never received them. She finally went to the Department of Veterans Affairs (VA) for help and was assisted by the VA in filling out the forms to send to her congressman. 3. The applicant provides a: * certificate of death * divorce decrees * letter from DFAS to her congressman * letter from DFAs to her * Retiree Account Statement * statement from her daughter, dated 25 February 2015 * statement from her physician, dated 20 February 2015 * letter of administration issued by a court, dated 29 December 2014 * page listing a change for an entitlement, dated 23 January 2013 * page listing her monthly social security benefits for 2011 * page listing her social security disability benefit for December 2011 CONSIDERATION OF EVIDENCE: 1. The applicant and the FSM were married on 14 November 1980. The FSM’s records show he enlisted in the Regular Army on 29 February 1984. He attained the rank/grade of sergeant major (SGM)/E-9 on 1 August 2004. 2. In conjunction with his upcoming retirement, he made an SBP election for "spouse" coverage based on the full base amount. 3. The FSM was honorably retired on 31 October 2008 in the rank of SGM and he was placed on the Retired List on 1 November 2008. He was married to the applicant at the time of his retirement. 4. He and the applicant were divorced on 24 November 2009. The divorce decree shows the FSM was to provide 50% of his disposable retired pay to the applicant. The divorce decree stated "the monthly [retired pay] payments shall be paid as long as the member has the right to receive the retired or retainer pay and shall cease at the death of either party, subject to the SBP." 5. The FSM died on 29 November 2014. His certificate of death shows his marital status as divorced. 6. The applicant provides the FSM's Retiree Account Statement, dated 3 December 2014, wherein it shows the FSM had been paying $217.71 per month for "spouse only" SBP coverage based on the full base amount of his retired pay, the amount would increase to $221.41 per month effective 31 December 2014, and he had paid for SBP coverage for 73 months toward his 360 months of paid up coverage. 7. She also provides a letter, dated 27 January 2015, to her Congressman from DFAS wherein a DFAS official stated, in part, the following in reference to his inquiry concerning the applicant's request for a SBP annuity as a former spouse. a. The applicant and the FSM were married on 14 November 1980, he retired on 1 November 2008, and he selected spouse coverage for his SBP at that time (emphasis added). They were divorced on 24 November 2009 and he died on 29 November 2014. b. Public Law 98-94 amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage within 1 year of divorce. Public Law 98-525 further amended the SBP by giving the former spouse of a retiree the option to request that a former spouse election be deemed to have been made by the retiree. c. The first requirement for a deemed election to be valid is that the divorce decree must specifically indicate the former spouse is entitled to coverage under the SBP. The second requirement is that the request for a deemed former spouse election must be received within 1 year of the divorce. The divorce decree DFAS had on file did not mention the FSM's SBP account, he did not elect former spouse coverage within 1 year of the divorce, and the applicant did not deem the former spouse election. d. The applicant may ask the Army Board for Correction of Military Records (ABCMR) to review the FSM's records and her eligibility for entitlement to an annuity. DFAS did not have the authority to change his retired pay records without authorization from the ABCMR. 8. 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. 9. Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members. 10. 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 on active duty and had not yet made an SBP election. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 11. Title 10, U.S. Code, section 1448(b) (3) permitted 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. The evidence of record shows, upon the FSM's retirement on 1 November 2008, he and the applicant were married, and he elected SBP "spouse coverage" based on the full base amount. He and the spouse divorced on 24 November 2009 and he continued to pay SBP premiums until his death on 29 November 2014. 2. SBP elections are made by category, not by name. Once the FSM and his former spouse were divorced, the now former spouse was no longer an eligible SBP beneficiary. A change of the SBP election was required to have been made within 1 year of their divorce either by the FSM pursuant to the terms of the divorce decree or purely as a voluntary act or by the applicant via a "deemed election" request. There is no evidence either party did so. 3. Although the FSM's divorce decree did not specifically address the requirement for the FSM to maintain SBP for his former spouse, it did imply so as it stated "the monthly [retired pay] payments shall be paid as long as the member has the right to receive the retired or retainer pay and shall cease at the death of either party, subject to the SBP." More importantly, it is apparent the FSM planned to provide the SBP for his former spouse, as he continued to pay monthly SBP premiums up until his death in November 2014, 5 years after their divorce. 4. Considering the facts and circumstances of this case, it would be appropriate as a matter of equity to correct the FSM's records to show he requested to change his SBP election from "spouse" to "former spouse" within 1 year of their 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 changed his SBP election from "spouse" to "former spouse" coverage within 1 year of their 24 November 2009 divorce * showing the request was timely received and processed by the appropriate DFAS office * paying the applicant the annuity due as a result of this correction retroactive to 30 November 2014, the day following 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) AR20150003993 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003993 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1