IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090018240 


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 widow of a deceased former service member (FSM), requests that his Survivor Benefit Plan (SBP) beneficiary be changed from his former spouse to her.

2.  The applicant states that the FSM's designation of the former spouse as the beneficiary was voluntary.  It was not included in or required by the divorce decree.  He had tried, unsuccessfully, to get this changed.  

3.  The applicant provides, in support of her request, copies of an undated, unexecuted divorce decree purported to be the final agreement between the FSM and Colleen F.  Y____, his former spouse; the FSM's 1978 retirement orders; his 2009 death certificate; and the FSM's and applicant's 19 August 1991 marriage certificate.  

CONSIDERATION OF EVIDENCE:

1.  The FSM retired as a master sergeant (E-8) on 31 October 1978.

2.  The Defense Finance and Accounting Service (DFAS) reports that former spouse Colleen F.  Y____ receives the SBP benefit.

3.  There is no available evidence that the FSM ever attempted to change the SBP beneficiary or that the former spouse agreed to such a change.

4.  Public Law 92-425, the SBP, enacted 21 September 1972, 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. The election made by the member was irrevocable.

5.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

6.  Title 10, U.S. Code, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless certain requirements are satisfied, including section 1450(f)(2)(B) in a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

	(a)  furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

	(b)  certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the FSM's designation of the former spouse as the beneficiary was voluntary.  It was not included in or required by the divorce decree.  He had tried previously to get this changed, but was unsuccessful.  

2.  There is no authority in law or regulation to permit this requested action.

3.  There is no available evidence to suggest that the legitimate recipient agrees with this proposed action.  Therefore, there is insufficient evidence that would warrant granting the relief requested.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20090018240





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ABCMR Record of Proceedings (cont)                                         AR20090018240



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