B-233663, Aug 31, 1990

B-233663, Aug 31, 1990

MILITARY PERSONNEL - Pay - Survivor benefits - Annuities - Eligibility - Former spouses DIGEST: A retired service member entered into a stipulation to provide Survivor Benefit Plan (SBP) annuity for his ex-wife pursuant to their divorce. Although he did not sign the transcript of the stipulation, it constitutes a voluntary written agreement. Therefore, his ex-wife is entitled to a deemed SBP election under 10 U.S.C. Sec. 1450(f)(3)(A).

Molly Kaplan - Survivor Benefit Plan Annuity for Former Spouse:

This is in response to an appeal of a Claims Group determination which denied Molly R. Kaplan's claim for a Survivor Benefit Plan (SBP) annuity through Lieutenant Colonel Ray Kaplan, USAF (Retired) (Deceased). For the reasons presented below, Mrs. Kaplan's claim may be paid.

BACKGROUND

Colonel Kaplan retired from the Air Force in 1970. When SBP was enacted in 1972, he elected coverage for his spouse, Molly. The Kaplans were divorced on June 3, 1985. During the divorce proceedings, Colonel Kaplan orally agreed to take the actions necessary to provide an SBP annuity for Mrs. Kaplan. His oral agreement was never reduced to writing and signed. He notified the Air Force of his divorce but did not initiate former spouse coverage. When he died in February 1986, Mrs. Kaplan claimed an SBP annuity. The Air Force denied her claim on the grounds that Colonel Kaplan never entered into a voluntary written agreement incident to the divorce proceeding to provide an annuity for Mrs. Kaplan. Our Claims Group denied her claim for similar reasons, and Mrs. Kaplan appealed their determination.

Counsel for Mrs. Kaplan argues that the oral statements made by Colonel Kaplan in the divorce proceeding are tantamount to a voluntary written agreement under Minnesota law and that the Air Force should deem that an election had been made.

DISCUSSION

The SBP, 10 U.S.C. Sec. 1447-55, was established by Congress in 1972 as an income maintenance program for dependents of deceased service members. See Pub. L. No. 92-425, 86 Stat. 706 (1972). At the time of enactment, there was no authority for coverage of a former spouse, and upon a divorce a retired member's former spouse could no longer be covered under SBP.

In 1983 the SBP was amended to provide eligible members the option of designating a former spouse as beneficiary if the member had initially elected coverage for a spouse and later divorced that spouse. To make such an election, it was necessary for the member to submit a statement indicating whether the election was pursuant to a voluntary written agreement previously entered into as a part of or incident to a proceeding of divorce, dissolution, or annulment and whether such voluntary written agreement had been incorporated in or ratified or approved by a court order. See Pub. L. No. 98-94, Sec. 941, 97 Stat. 614, 652-54 (1983), 10 U.S.C. Secs. 1447-48 and 1450 (Supp. I 1983).

In 1984 Congress further amended the law to provide that an election for a former spouse could be deemed by the Secretary concerned to have been made if there was a voluntary written agreement for SBP coverage for the former spouse and such agreement had been incorporated in, ratified or approved, by a court order. Pub. L. No. 98-525, Sec. 644, 98 Stat. 2492, 2548 (1984).

When the Kaplans' divorce was final, Colonel Kaplan notified the Air Force of his changed marital status. The Air Force cancelled Mrs. Kaplan as beneficiary. In order for her to receive an annuity as his former spouse, he would have had to submit a former-spouse election along with a written statement regarding his voluntary written agreement to provide coverage as described in 10 U.S.C. Sec. 1448(b)(5) or the Air Force would have to deem an election on the basis of a written agreement incorporated in, ratified or approved by a court order. The Air Force indicates that it did not receive any such documentation from Colonel Kaplan, and it determined that there was no written agreement connected with the court proceedings.

Counsel for Mrs. Kaplan urges that Minnesota case law should control and that under that law Colonel Kaplan's statements made in the divorce proceedings concerning former spouse coverage under the SBP are the equivalent of a voluntary written agreement required by the SBP. While federal law governs the requirements for payment of an SBP annuity, there is no definition of "voluntary written agreement" in the SBP statutes. The legislative history of Pub. L. No. 98-525 indicates that the purpose of requiring a voluntary written agreement was to insure that an agreement was made and that it was made voluntarily, See S. Rep. No. 500, 98th Cong., 2d Sess. 222 (l984). The stipulation which Colonel Kaplan made as part of the divorce proceedings serves the same purpose. Colonel Kaplan voluntarily agreed under oath to provide his wife with an SBP annuity. His agreement was transcribed by a court reporter. When he was specifically asked if he was voluntarily agreeing to the terms set forth in the stipulation, he said that he was.

Since the stipulation constitutes a written agreement, Mrs. Kaplan is entitled to a deemed election under 10 U.S.C. Sec. 1450(f)(3)(A). She fulfilled the requirements of the statute by requesting an election within 1 year of her divorce from Colonel Kaplan.

Accordingly, Mrs. Kaplan is entitled to an SBP annuity.