RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012875 


	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.  


x
	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 deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage and that she be awarded the SBP annuity retroactive to the date of his death.

2.  The applicant states, in effect, that she was married to the FSM for 27 years before they were divorced and she was awarded 50% of his retirement benefits in the divorce settlement that was in the final divorce degree.  Accordingly, she should receive the benefits to which she is entitled. 

3.  The applicant provides a copy of the FSM’s 20-year letter, a letter from the Deputy Chief of Staff, Personnel of the Florida Army National Guard (FLARNG), the FSM’s death certificate, their marriage license, a copy of an Application for Annuity under the Retired Serviceman’s Family Protection Plan and the SBP (DD Form 1884) dated 10 November 2003, a SBP Election Certificate (DD Form 1883) dated 9 November 1990, a report of separation (NGB Form 22) and a copy of her divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM born on 9 August 1946 and was commissioned as a United States Army Reserve (USAR) second lieutenant on 9 June 1968.  He was married to the applicant on 16 November 1968 and served on active duty from 21 November 1968 to 20 November 1970, when he was released from active duty and was transferred back to the USAR.  

2.  He continued to serve in the Reserve Components and was promoted to the rank of lieutenant colonel while serving in the FLARNG on 2 May 1988. 

3.  On 10 July 1990, the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 

4.  The FSM submitted a DD Form 1883 electing full SBP under option B and named the applicant, who was his spouse at the time, as the beneficiary.  Under option B, he elected to provide an annuity beginning on the 60th anniversary of his birth should he die before that date, or on the date after date of death should he die after his 60th birthday.     

5.  On 13 July 1990, the FSM was honorably discharged from the FLARNG and was transferred to the USAR Control Group (Annual Training).  On 7 April 1994, the FSM was transferred to the Retired Reserve at his request.

6.  On 20 December 1995, the applicant and the FSM were granted a divorce in the Fourth Judicial Circuit Court in Duval County, Florida.  In paragraph 8 of the divorce decree, the applicant was granted 50% of the FSM’s retirement from the FLARNG, when such retirement was received.

7.  On 29 July 2003, the FSM died at the age of 56.  He was still divorced at the time of his death and the applicant is listed as the informant on the FSM’s death certificate.

8.  Information obtained from the Defense Finance and Accounting Service indicates that no annuity payments are being made on the FSM’s account.

9.  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 (Reservists, too).

10.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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 after the date of the decree of divorce, dissolution, or annulment.  





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that while the applicant and the FSM were still legally married in 1990, the FSM elected spouse coverage under option B, to commence after he became eligible to receive retired pay at age 60.  

2.  However, the applicant and FSM were legally divorced on 20 December 1995, almost 5 years after his initial SBP election and the divorce decree only directed that the applicant receive 50% of his military retirement when such retirement was received.    

3.  Unfortunately, the FSM never received Retired Pay because he died before he became eligible to receive it at age 60 and the court did not direct that the FSM take action to ensure that the applicant’s interest as a former spouse were protected in the event of his death.

4.  Inasmuch as the FSM never received retired pay benefits and did not ensure her interest in the SBP as a former spouse within 1 year after the divorce was finalized, the applicant is not entitled to receive either the retired pay awarded by the court or SBP benefits.

5.  Therefore, absent evidence to show that the FSM took action or was directed to take action to ensure that the applicant’s interest were protected as a former spouse under the USFSPA, there appears to be no basis to grant the applicant’s request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx_  ___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




INDEX

CASE ID
AR20060012875
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.137.0100
346/SBP ELIG
2.

3.

4.

5.

6.