IN THE CASE OF: BOARD DATE: 9 August 2011 DOCKET NUMBER: AR20100028220 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 the deceased former service member (FSM), requests, in effect, that the FSM's records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for former spouse coverage. 2. The applicant states she was divorced from the FSM in June 1998 because of his alcoholism. The FSM was told to adjust his military records but he never did and now the applicant is told she cannot receive SBP. They had remained friends but she did not know the seriousness of his illness until the second week of June 2010. The FSM passed on 15 August 2010. a. The last three months of the FSM's life were happier than he had been in years. He wanted to remarry and the applicant had agreed. The FSM was immobile so they could not get to the courthouse. The process took so long that his brain began to deteriorate and the chaplain was unable to perform the ceremony. The FSM was always proud of the U.S. Army. All he wanted to do was take care of his family but the alcohol made that impossible. Their daughter talked to someone in the SBP office who said that there was no question the applicant was qualified to receive SBP. b. Now, she does not understand why she has to go through all of this. The FSM signed all the paperwork in the early days of their marriage and she does not see what difference it makes that he did not report the divorce or update his records. It was the FSM's intent that the applicant receive the SBP. 3. The applicant provides copies of: * FSM's Death Certificate * Final Judgment and Decree of Divorce CONSIDERATION OF EVIDENCE: 1. On 9 January 1968, the FSM enlisted in the Regular Army. 2. On 18 October 1969, the applicant and the FSM were married in Situcet, Rhode Island. 3. On 23 June 1989, the FSM completed and signed a DA Form 4240 (Data for Payment of Retired Army Personnel): a. indicating that all unpaid retired pay was to be paid to the applicant; and b. indicating that the FSM had elected spouse only SBP coverage based on his full retired pay. 4. On 31 July 1989, the FSM retired due to length of service. He had attained the rank of sergeant first class, pay grade E-7, and had completed 23 years, 7 months, and 3 days of creditable active duty service. 5. On 8 June 1998, the FSM's petition for divorce was finalized. They had been married for more than 28 years. A review of the agreement indicates that each party had the right to make any changes in his or her respective insurance policies including but not limited to changing beneficiaries, increasing or decreasing coverage, or canceling such policies. The final divorce decree and all related documents are silent as to the SBP. 6. On 15 August 2010, the FSM died. His death certificate indicates that the applicant was his wife at the time and that she was also the informant for the FSM's information. 7. Defense Finance and Accounting (DFAS) records show that the FSM originally elected full SBP coverage for spouse. There is no evidence that the FSM made any subsequent changes to this election or had his SBP payments suspended. No one is currently receiving the SBP annuity. 8. 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. 9. 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. 10. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members. 11. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election. 12. Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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 FSM elected to participate in the SBP for spouse only coverage in June 1989. He and the applicant divorced in June 1998. The divorce decree did not mention the SBP; therefore, the applicant did not have the option of requesting a deemed election of the SBP. 2. Nevertheless, the applicant’s contention that because the FSM never changed his election with regard to the SBP meant he still wanted her to receive it, and that they loved each other and she was there for him until death, appears to be corroborated by the FSM’s continual payment of SBP premiums and her identification on the FSM’s death certificate. 3. DFAS has confirmed that no one is currently receiving the FSM’s SBP annuity. 4. Based on the evidence in this case, it would be equitable to correct the FSM’s records to show he changed his SBP spouse coverage to former spouse coverage in the manner prescribed by law. 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 that he made a written request to change his SBP spouse coverage to former spouse coverage within 1 year of his 8 June 1998 divorce; b. that his request was received and processed by the appropriate office in a timely manner; and c. paying to the applicant the SBP annuity retroactively from 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) AR20100028220 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100028220 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1