RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060013553 


	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.  


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	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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be determined to be eligible to receive the Survivor Benefit Plan (SBP) annuity.  

2.  Counsel states that the wrong person is being paid the SBP annuity.  Counsel states the applicant is entitled to 50 percent of the monthly pension benefits of her former husband, a deceased former service member (FSM), based on a 6 May 1990 court order until the FSM’s death on 31 December 2003.  Counsel also states the applicant is entitled to former spouse survivor benefits from 31 December 2003 to the present.

3.  Counsel provides a copy of the FSM’s death certificate; a letter, dated 12 May 2005, to the Defense Finance and Accounting Service, Cleveland Center 
(DFAS-CL); a DD Form 2293 (Application for Former Spouse Payments from Retired Pay); a W-4P (Withholding Certificate for Pension or Annuity Payments); the applicant’s and the FSM’s marriage certificate; a notarized statement from the applicant; two copies of the applicant’s Identification and Privilege Card; a letter, dated 4 March 2005,  to DFAS-Indianapolis Center (DFAS-IN); an Order from the Commonwealth of Kentucky, Johnson Family Court, dated 5 November 2004; an Order from the Commonwealth of Kentucky, Johnson Circuit Court, dated 6 May 1988; a divorce decree, dated 20 July 1983; an article regarding military retirees; an undated letter from DFAS-Indianapolis, Indiana; a newspaper article regarding survivor benefits; a bulletin regarding the Uniformed Services Former Spouses’ Protection Act; a letter, dated 14 February 2005, to DFAS-IN; a letter, dated 24 June 2005, from a paralegal specialist at DFAS-CL and a letter of response, dated 3 August 2005; the applicant’s Social Security Benefit Statements from 1997 through 2003; and the FSM’s Army Retired/Annuitant Pay Statement for March 1982.

CONSIDERATION OF EVIDENCE:

1.  The FSM initially enlisted in the Regular Army on 16 January 1948 and was discharged on 18 October 1949.  After a break in service, he enlisted in the Regular Army again on 4 December 1952.  He married the applicant on 15 January 1957.

2.  The FSM continued to serve on active duty and was retired on 1 February 1972 by reason of permanent physical disability with a 30 percent disability rating.

3.  The FSM and the applicant were divorced on 30 June 1981.  He remarried the applicant on 13 March 1982.  His Retired/Annuitant Pay Statement for March 1982 shows an SBP premium of $10.86 for spouse and child coverage was deducted from his retired pay.  

4.  He divorced the applicant on 20 July 1983.  The divorce decree does not mention the SBP.

5.  There is no evidence of record which indicates the applicant submitted a written request for a deemed election for former spouse coverage, although the 1983 divorce decree did not entitle her to make a request for a deemed election.

6.  On an unknown date, the applicant filed a motion in the Commonwealth of Kentucky, Johnson Circuit Court, to amend the Judgment to conform to the Uniformed Services Former Spouses’ Protection Plan under Public Law 97-252 and Public Law 98-525. On 6 May 1988, the court ordered that the Department of the Army, U.S. Army Finance and Accounting Center, pay the applicant $500.00 a month out of any of the FSM’s military retired/retainer pay or SBP payments.

7.  The FSM remarried on an unknown date.

8.  The FSM died on 31 December 2003.  His death certificate shows his marital status as married and his surviving spouse is listed as J____. 

9.  The applicant filed a motion in the Commonwealth of Kentucky, Johnson Family Court, to amend the Post-Decree Order of 6 May 1988 to conform to the Uniformed Services Former Spouses’ Protection Plan under Public Law 97-252 and Election of Former Spouse as Beneficiary under Public Law 98-525.  The court ordered on 4 November 2004 that the Department of the Army, U.S. Army Finance and Accounting Center, pay the applicant the sum of $500.00 a month out of any military retired/retainer pay or SBP payments of the FSM as monies for child support and maintenance pursuant to Kentucky law.  It was stated that this order was pursuant to the election of the former spouse as beneficiary under Public Law 98-525.  The court also ordered that the Department of the Army, U.S. Army Finance and Accounting Center, pay the applicant all survivor retirement benefits from the FSM’s death until her death.

10.  By a 9 March 2005 letter, a paralegal specialist from the DFAS-CL informed the Kirk Law Firm in Paintsville, Kentucky that DFAS had on file the court order issued in August 1988 authorizing withholding of $500.00 per month for spousal support and that this spousal support was paid to the applicant until the FSM’s death in December 2003.  The letter indicated the DFAS-CL did not have any record of the applicant’s applying for benefits per the divorce decree under the (Uniformed Services) Former Spouses’ Protection Act.  In addition, the letter indicated the former spouse was only entitled to SBP if it was awarded in the final decree of divorce and the former spouse had only one year after the date of divorce to make a deemed election for the SBP.  The SBP election could not be made after the death of the FSM.

11.  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.  It established a 12-month Open Season for those who retired prior to enactment of the law.  Elections are made by category, not by name.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  For court orders issued prior to 14 November 1986, if any portion of a member’s military retired pay is based on disability retired pay, the orders are unenforceable under the Act.

12.  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.  

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

14.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

15.  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.  This provision applies only to divorces finalized after 14 November 1986.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 1 February 1972, prior to the establishment of the SBP.  He was married to the applicant at that time.

2.  The SBP was enacted in September 1972.  It appears the FSM subsequently enrolled in the SBP for spouse and child coverage during an Open Season.  

3.  The FSM and the applicant divorced in June 1981 and remarried in March 1982.  

4.  The FSM and the applicant divorced on 20 July 1983.  The divorce decree does not mention the SBP.  Former spouse SBP coverage for retired members was not established until 24 September 1983.  However, there was a May 1988 court order that mentioned SBP and a November 2004 court order that explicitly awarded the applicant the SBP annuity after the FSM’s death.  But neither the FSM nor the applicant submitted a written request to DFAS for SBP former spouse coverage within one year of either court order.  The FSM’s second spouse was also not named as a party in either court order.  

5.  The FSM remarried on an unknown date.  By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage.  As elections are made by category, not by name, the applicant stopped being the FSM’s spouse upon their divorce because the SBP beneficiary category remained spouse.  

6.  Absent consent of the widow to correct the FSM’s records to provide for former spouse coverage in lieu of spouse coverage, to grant the applicant’s request at this date would constitute an unconstitutional taking of property without due process of law from his widow.  The applicant’s only other remedy is to return to court, join the FSM’s widow as a party to ensure her due process, and petition the court to resolve this issue.  If successful, she may request reconsideration of her case by the ABCMR.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______  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
AR20060013553
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070612
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.0000
2.

3.

4.

5.

6.