IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150008165 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: 21 April 2016 DOCKET NUMBER: AR20150008165 BOARD DETERMINATION/RECOMMENDATION: 1. 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 enrolled in the SBP, for the full coverage rate, at the time of retirement and named the applicant as the beneficiary; that the applicant made a request for a deemed election within one year of her divorce from the FSM and DFAS timely received and accepted her request for a deemed election; and that she be paid the SBP annuity retroactive to the day after the FSM’s death. 2. The applicant is advised that DFAS will collect any SBP premiums due. _____________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: 21 April 2016 DOCKET NUMBER: AR20150008165 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 participation in the Survivor Benefit Plan (SBP). In effect, she requests correction of the FSM's records to show he elected to participate in the SBP for former spouse coverage and payment of the SBP annuity based on the FSM's death. 2. The applicant states: a. She was awarded half of the FSM's retirement benefits by the divorce court, but she has not received the benefits from the military. b. She fought for her rights to no avail until all her resources ran out. There must be some records to support her. She also went to the Judge Advocate General’s office to no avail. c. She believes the Army let her down. She has been living in poverty and is no longer able to work because of health issues. She has been denied justice and support from the military. 3. The applicant provides: * FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) * Final Divorce Decree * Department of Veterans Affairs correspondence * DA Form 2339 (Application for Voluntary Retirement), first page only * DD Form 2656 (Data for Retired Pay), first page only * Army Review Boards Agency letters pertaining to a previous application from the FSM * Leave and Earnings Statement Member Entitlement Statements * FSM's Death Certificate CONSIDERATION OF EVIDENCE: 1. The FSM retired as a command sergeant major/E-9 effective 31 July 1989. 2. The FSM and the applicant were married 30 November 1960. 3. In an undated DA Form 4240 (Data for Payment of Retired Army Personnel), the FSM indicated he was married and had dependent children. He did not complete the items pertaining to SBP election. This form further shows his spouse was not available for counseling and was informed by a letter, dated 23 May 1989. 4. A letter from the Retirement Service Officer (RSO), Fort Ord, CA, dated 23 May 1989, addressed to the applicant, as the FSM's spouse, notified her that he had requested retirement to be effective 1 August 1989 and that when he retired he could participate in the SBP. An SBP Fact Sheet and Spousal Concurrence form were enclosed with the letter. 5. A statement signed by an RSO, dated 27 July 1989, indicates the SBP Letter was mailed to the applicant on 23 May 1989 and nothing was returned. The DA Form 4240 was still incomplete. 6. In a final divorce decree, dated 6 February 1991, the court noted the FSMs pay stub reflected he was having $128.35 deducted for SBP. The court ordered the FSM to continue to maintain the SBP coverage and maintain the applicant as the beneficiary. 7. The Defense Finance and Accounting Service (DFAS) reports that they do not have a complete copy of the divorce decree. The available court papers show the applicant was entitled to a judgement from the court ordering the FSM to name her as the irrevocable beneficiary for his SBP and requiring him to pay the full amount for participation in the SBP. The FSM was also prohibited from altering and/or amending the election without the permission of the court. 8. The FSM died 12 March 2010. REFERENCES: 1. 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. Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 2. 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. 3. 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 1 year of the date of the court order or filing involved. 4. 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. DISCUSSION: 1. The evidence of record shows the applicant and FSM were divorced on 6 February 1991. Their divorce papers noted the FSM would continue to pay the SBP premiums and stipulated that he should maintain the applicant as the SBP beneficiary. 2. There is no evidence showing the FSM complied with the court requirement to appoint the applicant as the SBP beneficiary. 3. In view of the above, it would be appropriate to grant the applicant's request as a matter of equity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008165 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008165 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2