RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 June 2007
	DOCKET NUMBER:  AR20060012437 


	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.




	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 a former service member (FSM), requests that she be listed as the former spouse beneficiary of the FSM’s Survivor Benefit Plan (SBP).

2.  The applicant essentially states that the FSM failed to comply with a court order to designate the applicant as a beneficiary under SBP within 1 year of the date of their divorce on 21 July 2004, to continuously maintain her as a beneficiary under SBP, and to pay the SBP premiums.  

3.  The applicant provides a certified copy of their divorce decree in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 July 2005, the date the FSM failed to comply with his divorce decree and designate the applicant as the beneficiary of his SBP.  The application submitted in this case is dated 23 August 2006.

2.  The FSM was placed on the Retired List on 3 March 1995.

3.  The applicant provided a certified copy of the divorce decree for the FSM and herself, which clearly shows that the FSM was ordered to designate the applicant as a beneficiary under SBP within 1 year of the date of their divorce on 21 July 2004, and continuously maintain her as a beneficiary under SBP and pay the SBP premiums.  

4.  During the processing of this case, coordination was made with the Defense Finance and Accounting Service (DFAS) in order to verify information relevant to the FSM’s SBP election.  This coordination confirmed that the FSM was still alive, but it does not appear that the FSM complied with the court order to convert his SBP from spouse coverage to former spouse coverage within 1 year of the date of their divorce.

5.  There is no record of the applicant making a written request to DFAS requesting the election of former spouse coverage within 1 year of the date of the divorce decree.


6.  As the FSM is still alive, the analyst for this case attempted to contact him by telephone to determine if he remarried, and if he has been remarried for more than 1 year, or if any children resulted from a possible remarriage, as the legal beneficiary for the FSM’s SBP would be his new spouse, despite his prior divorce decree.  Although the analyst in this case spoke with someone at the FSM’s residence, and left a message requesting the FSM return a telephone call to confirm his current marital status, no return call was received.  Subsequent follow-up calls by the analyst in this case to the FSM were unanswered. 

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

8.  Title 10, U. S. Code, section 1448b3 (10 USC 1448b3) 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.  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.

9.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be listed as the former spouse beneficiary of the FSM’s SBP.




2.  The intent of the USFSPA is to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case.  The 
applicant’s court-directed entitlement to continued SBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.  

3.  Although the applicant should have made a written request that the FSM’s SBP be converted from spouse coverage to former spouse coverage, the evidence shows that an injustice occurred due to the FSM’s failure to comply with the terms contained in their 2004 divorce settlement.

4.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request that a “Former Spouse” SBP coverage election be deemed to have been made within one year of the divorce.   

5.  However, it could not be determined if the FSM has been remarried for more than 1 year, or whether a child resulted from a possible remarriage, which would make the FSM’s new spouse the legal beneficiary of the FSM’s SBP, despite his prior divorce decree.  Repeated attempts to contact the FSM to confirm his marital status have been unsuccessful.  

6.  As it could not be conclusively determined whether or not the FSM’s SBP has vested in a new spouse, there is insufficient basis for granting relief to the applicant in this case.  Although the FSM is at risk of being found in contempt in court for not obeying with the terms of his divorce decree, the applicant could sue the FSM to enforce the divorce decree.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BE ___  __FJ ____  __QS___  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.




______Barbara Ellis_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012437
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070619
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
137.0400.0000
2.

3.

4.

5.

6.