IN THE CASE OF: BOARD DATE: 25 July 2013 DOCKET NUMBER: AR20130000889 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) election from spouse to former spouse. 2. The applicant states the spouse election was made for the SBP while she and the FSM were still married. The SBP benefit was agreed upon and ordered by the court during their divorce in 1999. The FSM did not change the SBP election to former spouse after their divorce. The monthly SBP premiums were paid until the FSM died. 3. The applicant provides: * FSM's death certificate * Her divorce decree CONSIDERATION OF EVIDENCE: 1. With previous active service, the FSM's records show he enlisted in the Regular Army on 27 September 1983. He and Janet, the applicant, were married on 22 October 1976. 2. The FSM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 3. On 15 June 1999, in connection with his upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to Janet and they had three dependent children. He elected SBP coverage for "spouse" based on the full amount. 4. On 2 July 1999, the FSM and applicant submitted a petition for dissolution of marriage. With their petition, they filed a Marital Settlement Agreement, date 8 July 1999. This agreement states "As additional child support, we both agree that the husband will provide the standard SBP Coverage to provide payments to the wife in the event of his death." 5. The FSM and the applicant were divorced on 16 September 1999. Their divorce decree incorporates their Marital Settlement Agreement. 6. The FSM retired on 30 September 1999 and he was placed on the Retired List in the retired rank of SFC/E-7 on 1 October 1999. 7. There is no indication the FSM notified officials at the Defense Finance and Accounting Service (DFAS) of his divorce or that he submitted a voluntary change of his SBP coverage within 1 year of his divorce. 8. There is no indication the former spouse, Janet, made a deemed election to change the FSM's SBP coverage from "spouse" to "former spouse" within one year of the date of their divorce. 9. The FSM died on or about 30 March 2012. His death certificate shows he was divorced at the time of death. DFAS has stated the FSM paid SBP premiums until his death. 10. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 11. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. 12. 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. 13. 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. 14. 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 AND CONCLUSIONS: 1. The applicant and the FSM were married on 22 October 1976 and they were divorced on 16 September 1999. Their divorce decree stipulated that he would maintain an SBP annuity for the former spouse. Even though the FSM continued to pay the SBP premiums neither the applicant nor the FSM made a deemed election for former spouse coverage within one year of the divorce. 2. Since SBP election is 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. However, a divorced spouse may receive an SBP annuity if a deemed election is made for the former spouse (under certain conditions). 3. Nevertheless, there is no evidence the FSM was remarried. He continued to pay SBP premiums until his death, which indicates that he intended to provide an annuity for the applicant. 4. Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected, as a matter of equity, to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner. Additionally, the former spouse, Janet - the applicant, should be paid the SBP annuity based on his death. 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 voluntary change in the SBP election from spouse to former spouse on 30 September 1999 (the day he retired) and that the request was received and processed by the appropriate office in a timely manner; and b. paying the applicant the SBP annuity retroactive to 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) AR20130000889 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000889 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1