IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150016239 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: 7 March 2017 DOCKET NUMBER: AR20150016239 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 applicant made a deemed election within one year of her divorce and DFAS timely received and accepted her deemed election; b. paying the applicant the SBP annuity retroactive to the date of the FSM's death, minus any required premium deductions. ___________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: 7 March 2017 DOCKET NUMBER: AR20150016239 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 correction of the FSM's records to show a former spouse Survivor Benefit Plan (SBP) election was submitted and approved within one year of their divorce. 2. The applicant states the FSM was directed by a court order to provide SBP coverage for her following their divorce. The FSM felt he was honoring the directive by continuing to pay for the coverage without knowing that he was supposed to change his election from spouse to former spouse coverage. He also had no knowledge of the necessary change of category. He continued to pay for the plan for the required 360 months until 1 October 2012. It was clearly his intent to meet the terms of their divorce. The FSM did not change the category from spouse to former spouse upon their divorce and she was not aware of the requirement. 3. The applicant provides a License and Certificate of Marriage, Death Certification, and a settlement agreement and divorce decree. CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 24 May 1946. 2. The FSM retired on 1 August 1966. His AGPZ Form 977 (Data for Retired Pay) shows he declined the Retired Servicemen's Family Protection Plan. 3. The applicant and FSM were married on 25 September 1982. 4. Information obtained from the Defense Finance and Accounting Service (DFAS) confirms the FSM enrolled in the SBP on 29 September 1982 and elected spouse coverage. 5. The applicant and the FSM were divorced on 18 September 1996. A fair reading of the settlement agreement between the parties, which was incorporated by reference into the divorce decree, awarded SBP coverage to the applicant. 6. The FSM died on 20 February 2013. His death certificate shows he was not married. 7. There is no evidence that indicates the FSM and/or the applicant requested a deemed election within one year of their divorce. 8. According to information obtained from DFAS, the FSM's account listed no beneficiary for SBP as of 18 September 1996 (the date of their divorce). 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. The evidence of record shows the FSM elected SBP spouse coverage on 29 September 1982. The FSM and the applicant divorced on 18 September 1996. The divorce decree required the FSM to maintain SBP coverage for the applicant. However, there is no evidence showing the FSM complied with the court order by changing his election from spouse to former spouse coverage. There is also no evidence the applicant made a deemed election within one year of the court order as required by law. 2. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP that makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. 3. Spouses and former spouses are not routinely counseled concerning the need to file a deemed election within one year of a divorce. 4. SBP elections are made by category, not by name. Therefore, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. However, because the FSM was not married at the time of his death, there is no widow to raise a claim pertaining to SBP benefits. Accordingly, there is no barrier to recommending relief 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) AR20150016239 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016239 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2