IN THE CASE OF: BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015167 BOARD VOTE: ___x_____ ___x___ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015167 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 had requested that his SBP coverage be changed from spouse coverage to former spouse coverage in a timely manner in compliance with the terms of his divorce from the applicant; and b. paying the applicant the SBP annuity retroactive to the date of 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. IN THE CASE OF: BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015167 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, in effect, the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be changed from spouse to former spouse and that she be paid the SBP annuity. 2. The applicant states the FSM paid premiums for SBP until his death in June 2015. She and the FSM divorced in August 2008 and she believed a former spouse election was made at that time. The SBP annuity was awarded to her in their divorce decree. After their divorce he continued to pay the premiums and retained her as the beneficiary. If he had not intended to provide the annuity for her, he would have cancelled the allotments. Neither party married after the divorce. They maintained a close relationship and she took care of him until his death. She took care of his funeral and memorial service arrangements and paid for his cremation and obituary. 3. The applicant provides: * FSM's Certificate of Death * Marital Separation Agreement * Divorce Decree CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM entered active duty on 26 June 1966. He and the applicant were married on 24 October 1989. 3. The FSM was honorably retired on 31 January 1993. During his separation processing, he completed a DD Form 4240 (Data for Payment of Retired Army Personnel) in which he elected full SBP coverage for "spouse and dependent children." 4. The FSM and the applicant were divorced on 6 August 2008. SBP is mentioned in the Marital Separation Agreement. The Separation Agreement was adjudged, ordered and decreed in the final Divorce Decree. The settlement states the applicant is the beneficiary of SBP and she will kept as the beneficiary permanently. 5. There is no evidence the applicant requested a deemed election within 1 year of the divorce. According to information maintained at the Defense Finance and Accounting Service (DFAS) the FSM's account listed the applicant as the spouse and no former spouse election was made. 6. The FSM died on 19 June 2015. His death certificate indicates he was divorced at the time of his death. REFERENCES: 1. 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. 2. 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. 3. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 4. 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. 5. 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: 1. On 6 August 2008, the applicant and the FSM divorced. Although their divorce decree stipulated the FSM would maintain an SBP annuity for the now former spouse, neither the FSM nor the applicant notified DFAS of their divorce or provided a written request to change the election from "spouse and children" to "former spouse" within 1 year. 2. A former spouse may request a deemed SBP election. There are two requirements for a deemed election to be valid. The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP. The second is that the request for a deemed former spouse election must be received within 1 year of the divorce. 3. For example, when the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within 1 year of the divorce. A divorce decree alone does not constitute a deemed election. 4. Because SBP elections are by category, not by name, a spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit. Once the FSM and his former spouse were divorced she was no longer his spouse and no longer an eligible SBP beneficiary. However, it is clear the FSM intended to honor the terms of his divorce because he continued paying premiums for the coverage. Since the FSM did not remarry and there is no widow with a superior vested legal interest, equity permits relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015167 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2