RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012159 


	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

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Mr. Thomas Ray

Member

Ms. Rea Nuppenau

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 requests, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 

2.  The applicant states, in effect, that she was a military wife for 18 of her former husband’s 20 years of service and that she was married to him for almost 32 years including 14 years after he retired from the Army.  She states that the FSM deserted her and their two sons in August 1980, that they were legally separated in December 1980, and that they divorced on 26 April 1982.  She contends that it was the FSM’s clear intent to honor his obligation to her and his responsibility to his son with special needs during her lifetime as evidenced by their Property Settlement Agreement.  She also contends that the FSM acknowledged that he was to maintain insurance policies on his life, including the SBP.

3.  The applicant states that per a telephone conversation with the Defense Finance and Accounting Service (DFAS) legal office on 27 June 2006, in 1980 there was no “deemed election” requirement nor was there a requirement that the military member make a former spouse election as currently exists.  She states that the binding contract in the State decree and judicially ordered property settlement prevailed.  She goes on to state that the FSM’s second wife was married three times to men with military service connections and that he did not have any children by his second wife.

4. The applicant provides a death certificate; a statement of particulars; a letter, dated 21 August 1973, from the FSM to the Retired Pay Division; a USAFSA Form 20-108 (Reply to Correspondence or Request for Information Regarding Survivor’s Benefit Plan); a USAFSA Form 2621 (Survivor Benefit Plan Election Certificate by Existing Retiree), dated 16 January 1973; a USAFSA Form 20-22 (Statement of Establishment of Election Under Survivor Benefit Plan), dated 
19 August 1973; and a copy of their divorce decree and property settlement.    

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty on 3 August 1948.  He and the applicant married on 8 September 1950.  

2.  The FSM’s USAFSA Form 2621, dated 16 January 1973, shows he enrolled in the SBP for spouse and children coverage.

3.  The FSM retired in the rank of master sergeant on 31 August 1968 after completing over 20 years of active service.
4.  The FSM and the applicant divorced on 26 April 1982.  The divorce decree incorporated a Property Settlement Agreement which states, in pertinent part, that "The Husband agrees to pay the premiums and to maintain in full force and effect insurance on his life payable to the Wife as beneficiary and to David J. S--- as secondary beneficiary.  The Husband acknowledges that the life insurance program includes the military SBP program in force.”

5.  The FSM remarried on an unknown date.

6.  On 22 May 2006, the FSM died.  His death certificate shows that he was married to P---- S----. 

7.  Records at DFAS show the FSM’s widow is receiving the SBP annuity.

8.   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.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, the FSM and the applicant divorced before the law authorizing former spouse SBP coverage was enacted.  The State court had no authority to incorporate that portion of the Property Settlement Agreement that pertained to the SBP into the divorce decree since Federal law did not allow for former spouse coverage.  There is no evidence to show the FSM attempted to change his coverage to former spouse coverage after Public Law 98-94 was enacted and prior to his remarriage.

2.  There is evidence to show the FSM remarried, although the date is unknown. At the one-year anniversary of their marriage his widow acquired a vested interest in the SBP as the FSM's legal beneficiary.  The Army Board for Correction of Military Records (ABCMR) may not act to terminate her rights in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s widow of a property interest without due process of law.  The ABCMR would only be empowered to correct the FSM’s records to grant the applicant a SBP annuity under one of two circumstances:

(a) The FSM’s widow executes a signed notarized affidavit relinquishing her rights in the SBP annuity in favor of the applicant.  
   
(b) The applicant obtains an order from a State Court of competent jurisdiction, in an action joining the FSM’s widow as a party, declaring that the applicant is the rightful beneficiary of the FSM’s SBP annuity.

3.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s widow or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  __TR___  __RN____  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.



___John Meixell___________
          CHAIRPERSON


INDEX

CASE ID
AR20060012159
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.