MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002074023

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond V. O’Connor, Jr.		Member
Ms. Barbara J. Lutz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That a determination be made that she is entitled to a Survivor Benefit Plan (SBP) annuity either as a spouse beneficiary or as a former spouse beneficiary.

APPLICANT STATES: In effect, that she was still married to the former service member (FSM) when he died. No professional New York lawyer would be representing a client in a matrimonial dispute in court in 1997 if that dispute had been finalized in 1994. Likewise, the action commenced by the FSM in November 1990 was still before the divorce court in September 1998, when he died. The only correct conclusion to be drawn is that the outcome of the divorce case was, and continues to be, incomplete. No decision of any kind was ever made by the court on the issues of equitable distribution and financial matters. These issues belonged to the second half of the divorce trial. They are the essence, the nuts and bolts, the core of a divorce action. Because they were never decided prior to the FSM’s death, she did not become a divorcee. Instead, she became a widow with full entitlement to the SBP. Supporting evidence is as listed on the enclosure to the DD Form 149.

EVIDENCE OF RECORD: The FSM’s military records show:

He was born on 21 August 1918. After having had prior active duty, he entered the U. S. Army Reserve in 1946 as a commissioned officer. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 4 April 1968. On 21 January 1975, he was transferred to the Retired Reserve. Apparently, he married the applicant on 17 December 1977. He turned age 60 in August 1978 and records at the Defense Finance and Accounting Service (DFAS) show that he enrolled in the SBP at that time for spouse and child coverage.

The divorce decree, effective 1 November 1994, was obtained from DFAS. The FSM had brought the action for an absolute judgment of divorce. The divorce decree stated in pertinent part, “NOW,…it is ADJUDGED, that the marriage between (FSM), plaintiff, and (applicant), defendant, is dissolved…”

On 3 May 1995, the FSM provided a copy of the divorce decree to DFAS and inquired as to how he could reinstate his previous spouse as his SBP beneficiary.

A 24 March 1997 letter from the applicant’s attorney to the U. S. Social Security Administration indicated that he was presently in negotiation with the FSM’s attorney to resolve the financial aspects of the divorce.

The FSM died in September 1998.

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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.

Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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.

Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. 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. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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.

Around November 1999, DFAS provided the applicant its analysis of her case. DFAS noted that the bifurcated divorce proceeding is authorized under section 236 of the New York Domestic Relations Law. In New York, the right to equitable distribution of marital property accrues only upon dissolution or termination of the marriage but there is nothing in section 236 that would support a finding that a New York court must issue both a final decree of divorce and a final order of equitable distribution before the marital status of the parties is dissolved or terminated. The marital status of the parties is terminated upon the separate entry of the divorce decree. DFAS also noted that the Comptroller General had, in at least one case, recognized a state court order that was entered subsequent to the death of the retiree in order to designate the former spouse as the SBP beneficiary. If the applicant obtained such an order from the New York court having jurisdiction over the divorce proceeding, she would have one year from the date of that order to request a deemed election for former spouse SBP.

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Black’s Law Dictionary, 6^th edition, defines “divorce” as the legal separation of man and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The divorce decree adjudged that the marriage between the FSM and the applicant was dissolved, which meets Black’s Law Dictionary’s definition of divorced. The applicant provides no evidence from a qualified official from the State of New York to contradict DFAS’s analysis of her case.

3. It is acknowledged that the applicant was married to the FSM for about 17 years prior to the final divorce action in 1994. However, it was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career. The applicant married the FSM after his military career ended. In addition, the evidence shows that it was the FSM’s intent NOT to provide the SBP to the applicant as a former spouse but rather he inquired as to how to provide it for his previous spouse, who did share the hardships of his military career. Equity considerations weigh overwhelmingly against the applicant in this instance.

4. There is no legal merit to the applicant’s claim that her divorce from the FSM is not final, legal, and binding. As noted in DFAS’ analysis, if the applicant obtained an order from the New York court having jurisdiction over the divorce proceeding awarding her the SBP, she would have one year from the date of that order to request a deemed election for former spouse SBP. That request would be handled administratively by DFAS and would not require Board action unless for some reason DFAS denied her request.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JHL___ __RVO___ __BJL__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074023
SUFFIX
RECON
DATE BOARDED	2002/08/22
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.01
2.
3.
4.
5.
6.