RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060011651 


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


Mr. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of the deceased former service member (FSM), requests that she receive the benefits of his Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that the beneficiary for the SBP should be changed back to her as the previously designated former spouse.  She states that she was originally designated the beneficiary in 1992 and was never informed that her eligibility had been terminated.  Now, she is not allowed to claim the benefits.  She was told by telephone that she was not eligible to file a claim but has not been informed as to how she came to be removed as the beneficiary. 

3.  The applicant provides copies of their marriage license and certificate, divorce decree, SBP beneficiary designation as former spouse, letters to and from the Defense Finance and Accounting Service (DFAS), and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM, a Retired Reserve major, was placed on the Retired List and authorized pay on his 60th birthday, 20 February 1984.  

2.  On 21 September 1991 the applicant and the FSM's divorce became final.  The divorce decree made no mention of the SBP.     

3.   The FSM completed a Survivor Benefit Plan Election Change form on 
5 February 1992.  This changed his SBP beneficiary from spouse to former spouse and named the applicant as his former spouse.  An accompanying Survivor Benefit Plan Election Statement for Former Spouse Coverage was signed by the FSM on 10 February 1992 and by the applicant on 4 February 1992.  The FSM marked "Yes" to question number 4, "Is election made pursuant to a voluntary written agreement between the member and former spouse?"  He marked "No" to question number 5, "If there is a voluntary written agreement previously entered into by you as part of or incident to a proceeding of divorce, dissolution, annulment or has such written agreement been incorporated in or ratified by court order?"  
      

4.  On 23 June 1992 and 3 January 1993, the applicant wrote to the DFAS indicating that she had been informed that she had been named the SBP beneficiary and asking the following questions: 

a.  under what conditions could the FSM change the designation;

b.  would re-marriage of either party alter the eligibility; and 

c.  under what circumstances would she be eligible to receive the benefit?

5.  In a 13 January 1993 form letter the DFAS informed the applicant that she was the designated recipient of the FSM's SBP.  A handwritten note referred to her 3 January 1993 letter and stated that:  

(1)  the former spouse designation could not be cancelled; 

(2)  if the FSM remarried he could not change the designation to cover his new wife; 

(3)  if the applicant remarried prior to age 55, the SBP coverage and premium would be suspended, but a new wife could still not be covered; and 

(4)  the annuity was payable to the applicant upon presentation of the FSM's death certificate. 

6.  A DFAS-IN Form 20-108 (Reply to Correspondence or Request for Information Regarding Survivor's Benefit Plan), dated 27 July 1993, is addressed to the applicant.  It carries the handwritten note, "SBP is only stopped if you die.  If you remarry before age 55 it will be stopped & then when your spouse dies or you divorce you can again reenter the program if the retiree is still alive.  The SBP benefit starts when the retiree dies." 

7.  On 28 April 1994 and 23 February 1995, the applicant wrote to the DFAS asking for an official government publication or pamphlet explaining the SBP.  There is no available evidence of any response.    

8.  A 3 October 1997 letter from the DFAS to the applicant informed her that she was the designated recipient of the FSM's SBP.  


9.  In a 31 July 2003 letter to the DFAS the FSM asked that his former spouse, D____ K____, be removed as the SBP beneficiary and that B___C____ G____, his current spouse, be designated the SBP beneficiary.  He submitted a joint  affidavit to the effect that they, the FSM and B____ C. G____, were husband and wife by common-law marriage Alabama.  

10.  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, of the following requirements, whichever are applicable in a particular case are satisfied:

(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person: 

(i) furnishes to the Secretary concerned a certified copy of a court
 order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

(ii) certifies to the Secretary concerned that the court order is valid and in effect; or

         (B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person:

(i) 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

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

11.  The DFAS reported in a telephone conversation that a former spouse designation is not considered irrevocable unless it has been incorporated in the divorce decree or incorporated in or ratified by a court order.  Therefore, the DFAS opined that the FSM was free to change the designation and B____C____G____ is the current and correct recipient of the FSM's SBP benefit.

12.  In response to a staff request for any additional documentation or information, the applicant provided an affidavit to the effect that she had no additional documents.  She related that she had been unrepresented in the divorce and that the SBP beneficiary form had been provided to her as a completed document.  She also indicated that the information in question number 4 was incorrect.  There never was a written agreement between them to provide her with SBP benefits but that he had promised her to do so.     

DISCUSSION AND CONCLUSIONS:

1.  In 1992, the FSM designated his former spouse the beneficiary of his SBP.  He indicated at that time that this election was pursuant to a voluntary written agreement, but that said agreement had not been incorporated in or ratified by a court order.  The applicant indicated recently that there was not any written agreement. 

2.  The DFAS subsequently informed the applicant that she was the designated SBP beneficiary and also twice informed her that this designation could not be revoked. 
   
3.  It is reasonable to presume that the applicant made financial decisions based upon the reasonable expectation that she would receive the SBP benefit.   

4.  In 2003, the FSM asked the DFAS to change the SBP beneficiary to B____C____ G____ .  The FSM died and B____C____G____ is currently receiving the SBP benefit as the spouse beneficiary.

5.  The applicable law, Title 10, U. S. Code, section 1450(f)(2)(B), provides that when there is a written agreement that has not been incorporated in or ratified or approved by a court order, then the FSM was required to demonstrate that the applicant had agreed in writing to her removal as the SBP beneficiary, as well as provide certification that the applicant's signed concurrence was then current and in effect.  

6.  The applicant states that she never agreed verbally or in writing to relinquish the SBP benefit.  There is no documentary evidence of such a concurrence.  Unfortunately, because there was no written agreement, in accordance with Title 10, United States Code 1450(f)(2)(B), her concurrence was not required.


7.  Therefore, regrettably, the applicant's request must be denied.  The FSM was not required by law to provide the SBP annuity to the applicant either by reason of divorce related court order or a written agreement incorporated into a court order or by reason of a written agreement not part of a court order.  Therefore, the statutory requirement was not applicable to the FSM's completely voluntary (as acknowledged by the applicant herself) election of former spouse coverage.  He was able to legally change his election without her concurrence.  Therefore the FSM's change of SBP election to spouse coverage was valid.       

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS __  ___LDS__  __CD___  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.



_   _Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR2006011651
SUFFIX

RECON

DATE BOARDED
20070605
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.04
2.

3.

4.

5.

6.