RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  04 April 2008
	DOCKET NUMBER:  AR20060014739 


	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 spouse, a former service member (FSM), be corrected to show she was married to him at the time he retired; was still legally married to him at the time he applied for a reduced Survivor Benefit Plan (SBP) annuity, for spouse only, during an open enrollment season; was his legal spouse at the time of his death; and to show she is entitled to receive a SBP annuity.

2.  The applicant has deferred to counsel to present her case for her recognition as the FSM's spouse at the time of his death and her entitlement to a SBP annuity.

3.  In support of her request, the applicant provides a copy of the FSM's death certificate, their marriage certificate, a court order determining that she is the FSM's widow, and other relevant exhibits. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that the applicant is the FSM's widow; and thus, she is entitled to all of the survivor benefits that are due her from the Defense Finance and Accounting Service (DFAS) and Department of Veterans' Affairs (VA).

2.  Counsel continues that there is a conflict in the US Army master records regarding the two Mrs. T*****s, the extent to which has not been made known to the applicant.  The applicant therefore requests that the FSM's records be corrected to reflect the determination of a Texas District Court that the applicant was his wife from 1966 until the present and that she, as his widow, is the only person entitled to his survivor benefits.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 12 February 1957.  The FSM's record shows he completed his basic combat training at Fort Benning, Georgia, and his advanced individual training at Fort Gordon, Georgia.  After completing all required training, he was awarded the military occupational specialty (MOS), 94B (Cook).

2.  On 14 February 1966, the FSM married the applicant in Korea.

3.  The FSM continued to serve on active duty until 18 November 1960.  After a break-in-service of 1 month and 2 days, he reenlisted on 21 December 1960 and continued to serve on active duty until 31 March 1977 when he was separated from the Army for the purpose of retirement.

4.  On 13 October 1976, the FSM completed a DA Form 2339, Application for Voluntary Retirement.  In Item 10 (Election under Retired Serviceman's Family Protection Plan), the FSM entered, "NA," to indicate he did not wish to participate in the Retired Serviceman's Family Protection Plan.  In Item 32 (Remarks) of the DA Form 2339, he read and acknowledged the declaration which states, "I have been briefed concerning the Survivor Benefit Plan.  I understand that I will automatically be in the plan and will pay the full cost for coverage for my wife and children if applicable, unless I submit an election form to the contrary prior to my retirement."

5.  On 15 March 1977, a DA Form 3713, Data for Retired Pay, was completed in behalf of the FSM.  In Item 31 (Retired Serviceman's Family Protection Plan, Member States), the FSM indicated he did not wish to participate in the Retired Serviceman's Family Protection Plan and an entry of "NA" was made in the space.

6.  On 15 March 1977, the FSM completed a DA Form 4240 (Test), Data for Payment of Retired Army Personnel.  In Part II (Survivor Benefit Plan Election), in Item 9, the FSM responded, "Yes," to the question, "Are you married?"; however, in Part I (Information Concerning Beneficiaries for Unpaid Retired Pay), in Item 5 (Name / Address / Relationship / Share to each), he indicated he was living at a Seaside, California, address with his fiancée who later became his spouse.

7.  In Item 10, the FSM responded "Yes" to the question, "Do you have dependent children?"  In Item 11 (Check one of the following to indicate the type of coverage you desire), the FSM placed an "X" in the space indicating he wanted no SBP coverage.  In Item 12, the FSM repeated his indication he wanted no SBP coverage, even in a reduced amount.

8.  In Part VIII (Survivor Benefit Plan Certificates), an entry appears to show the FSM's spouse was not available for counseling; however, she was informed of his declination of SBP coverage by letter dated 15 March 1977.

9.  On 8 October 1976, the FSM had completed a DA Form 41, Record of Emergency Data, while he was on duty at Fort Ord, California.  In this form, he reported his spouse, at the time, was residing in Anchorage, Alaska.  No other 

DA Form 41 was completed and submitted by the FSM before the date he submitted his application for voluntary retirement.

10.  The FSM was separated for the purpose of retirement on 31 March 1977, in the rank and pay grade, Staff Sergeant, E-6.  At the time of his separation, he had completed 20 years and 8 days active military service and 20 years 1 month and 10 days service for pay purposes.

11.  A SEO-104, Report and Certificate of Marriage, submitted by the applicant, shows the FSM's first marriage ended in divorce.  This divorce was decreed on 11 April 1977 and became final on 19 April 1977.  The divorce, according to the report was granted in a civil court case [case number 209/1977] in the state of Guerrero, Mexico.

12.  The FSM remarried in Seoul, Korea, on 10 August 1977.

13.  The DFAS verified the FSM applied for SBP coverage for his second spouse, whom he specifically identified by name, in a reduced amount ($300.00), on 13 August 1982, during an open enrollment season.  The FSM provided the name of his second spouse as the beneficiary for SBP benefits.  In an e-Mail addressed to a staff member from the DFAS Liaison, verification was made that SBP payments are being made to the FSM's second spouse.

14.  The FSM died on 18 June 1999.  The FSM's certificate of death shows at the time of his death he was married; however, not to the applicant.  The surviving spouse listed on the certificate of death is the person he specifically identified as the beneficiary for a SBP annuity during the open enrollment season.

15.  In her application to the Board, applicant's counsel alleges after she was notified of the FSM's death by her daughter, she applied for SBP benefits and she began receiving monthly payments.  She then received a letter from the DFAS dated 27 July 2005 [which is not available for the Board's review because allegedly, it was discarded] indicating she was required to repay the amount she had received because she was purportedly also receiving payments from the VA in the form of Dependency and Indemnity Compensation (DIC).  She denies having applied for and received any payments from the VA in the form of DIC.

16.  The applicant provided a copy of an unsigned, undated letter [but which was logically submitted to the DFAS on or after 27 July 2005] she allegedly prepared and "faxed" to the DFAS disputing she owed a debt to the 

Government for DIC payments that had been made to her.  In this same letter, she stated she had been in receipt of SBP payments which allegedly were discontinued.  She summarized by stating she could not pay the debt and more importantly, discontinuance of SBP payments had caused her a great deal of financial hardship.  She asked that the DFAS take immediate steps to correct the problem and to resume SBP payments to which she believed she was entitled.  There is no evidence the applicant received a reply from the DFAS to this "faxed" letter.

17.  On an unspecified date, the applicant, through her counsel, filed a Plaintiff's Brief on Declaratory Judgment in the District Court of the G-134th Judicial District of Dallas County, Texas.  In this brief, counsel asked the court to declare the divorce the FSM obtained in Mexico in 1977 to be void.  Counsel argued that the Mexican divorce, to the extent actually obtained by the FSM, was obtained without complying with Mexican laws and in any event, without that country having proper jurisdiction to grant a divorce.  Furthermore, the applicant was not notified of the action nor did she submit to the jurisdiction of that country to consent to the divorce.

18.  On 8 May 2006, the District Court of the G-134th Judicial District ordered that the applicant was entitled to a Declaratory Judgment that:  the Mexican divorce purported to have been entered into by the FSM on 11 April 1977, less than two weeks after he retired from the Army, was invalid due to his failure to have established residence in Mexico for a sufficient period to qualify for a Mexican divorce, and the failure to provide notice of the action to the applicant in this case. The court further declared that the applicant is the sole widow of the FSM, having married him on 14 February 1966, and that marriage not having been terminated by divorce during his lifetime.

19.  In the processing of this case, an advisory opinion was requested of the Defense Finance and Accounting Service.  In requesting the advisory opinion, a member of the staff asked whether the default judgment submitted by the applicant was sufficient for her to receive an annuity under the SBP as the FSM's surviving spouse.

20.  In their reply, DFAS opined that the Texas Default Judgment was insufficient for them to establish the applicant as an eligible SBP beneficiary because the existence of a court order declaring that she is the FSM's lawful spouse does not overcome the fact that the FSM declined SBP coverage upon his retirement 

and affirmatively elected SBP coverage for an invalid spouse.  Accordingly, the DFAS opined that an administrative action could not be taken and a records correction was required.

21.  In her advisory opinion, DFAS Senior Associate Counsel, added that their office had been concerned with the validity of the Texas Default Judgment in regards whether the court was a court of competent jurisdiction; whether the applicant was entitled to SBP based on the fact that the member had declined SBP at the time of retirement and a notice of declination had been sent to the applicant; and finally, whether the applicant was entitled to SBP based on the fact that the member had affirmatively elected his second spouse as his beneficiary during an open enrollment season period for SBP.

22.  In determining whether the court was considered a court of competent jurisdiction, DFAS referred to similar cases where the Comptroller General had considered the following factors:  a) whether one of the court litigants was domiciled in the State that issued the decision, b) whether the member was domiciled in the State that issued the court order at the time of his death, c) whether both court parties were represented by counsel, and d) whether the court that issued the order had original jurisdiction over the validity of the marriage.

23.  Initially, the Senior Associate Counsel stated that the information in the file did not contain sufficient evidence for them to rule in favor of one claim over the other; therefore, a judicial determination was clearly required.  DFAS initially questioned whether the Texas court was a court of competent jurisdiction given the fact that both members were not residents of Texas; however, on the basis of the fact that the FSM's second spouse was properly served and had the ability to retain an attorney to either enter a special appearance and contest the jurisdiction of the court, or litigate the matter, but failed to do anything, along with the fact that the applicant was a resident of Texas, and that the Texas court had subject matter jurisdiction to determine the status of the marriage, DFAS concluded that the Texas court was the court of competent jurisdiction and, therefore, accepted the Default Judgment.

24.  DFAS noted that a member who was entitled to retired pay based on regular service was automatically a participant in the SBP unless the member elected not to participate in the plan.  They further noted that during the period 21 September 1972 until 1 March 1986, if the member elected not to participate in the SBP, the military service from which the member was retiring was required to notify the 

member's spouse that the member had declined SBP coverage.  DFAS further noted that a letter was sent to the applicant informing her of the FSM's decision not to elect SBP coverage.  The record was silent whether the applicant was properly counseled about the FSM's declination of SBP.  DFAS concluded that based on this evidence, one could conclude that the FSM's election not to participate in the SBP was void, and, as a result, the FSM was considered automatically enrolled in the SBP.

25.  DFAS also noted that, on the other hand, in other similar cases, the  Comptroller General had indicated that when a member affirmatively elects spouse coverage pursuant to the SBP for someone other than his lawful spouse, his election is invalid as to spouse coverage and no annuity is payable to the lawful spouse.  This same result was reached when a member applied for SBP spouse coverage for an invalid spouse during an open season period.

26.  The DFAS Senior Associate Counsel reiterated that the DFAS could not conclusively establish the applicant as an eligible SBP beneficiary.

27.  The Advisory opinion was provided to applicant's counsel on 25 January 2008 for acknowledgement and/or for the submission of rebuttal or comment.

28.  On 13 February 2008, applicant's counsel submitted an interim response to the advisory opinion.  In his response to the advisory opinion, counsel stated that their efforts to obtain a judicial determination by a court of competent jurisdiction were approved by the DFAS General Counsel's Office.  The statement in the advisory that they accept the default judgment established that the applicant was the lawful widow of the FSM and thus resolved the main issue.

29.  Applicant's counsel stated that the advisory suggested that the FSM's second spouse did not seek counsel from an attorney; however, that is not correct.  Although no answer was filed on her behalf, she did retain counsel and filed a motion for a new trial after the default judgment was obtained.

30.  Applicant's counsel reported that a hearing on the motion was held in the 134th District Court.  At the hearing, the FSM's second spouse's counsel argued that they had missed the filing deadline through administrative error in their office.  Applicant's counsel argued that while the error could be forgiven, the basis for granting a new trial was that evidence must be available that would result in a different outcome.  The FSM's second spouse's counsel acknowledged to the court that they did not have any evidence to prove that a valid divorce had been obtained by the FSM.  The judge denied the motion for a new trial ruling that the outcome would not be different if a new trial were to be granted since the FSM's second spouse could not affirmatively prove that the FSM had obtained a valid divorce from the applicant.  The rationale of the advisory, applicant's counsel summarized, resolves the main issue that the applicant is the lawful surviving spouse of the FSM and leaves open the issue of the SBP beneficiary.  Applicant's counsel submits that the ABCMR should accept the determination that his client is the surviving spouse and should take immediate action to substantiate, in all available military records, that she is entitled to all benefits available to a surviving spouse, including medical, pharmacy, commissary, etc.

31.  On 13 March 2008, applicant's counsel followed up with a response to the advisory opinion.  In his response, he reiterated the contents of the interim response and added that the FSM's second spouse had not appealed from the state court ruling.

32.  Regarding the issue of the entitlement to SBP, applicant's counsel stated that the DFAS advisory did not recommend denying awarding SBP benefits to the applicant.  It did however suggest that two US Court of Claims opinions, in particular, Barber v. US, 676 F. 2d 651 (1982), and Sumerakis v. US v. US, 34 Fed. Cl. 246 (1995) be considered.  These cases established that pre-1986 decisions by service members not to participate in the SBP were void if the spouse at the time of the election did not receive both (emphasis added) notice and counseling concerning the member's decision not to participate.  In cases where both notice and counseling did not occur, the court ruled that the spouse was entitled to SBP coverage.

33.  Applicant's counsel renewed his request, in behalf of his client, to correct the FSM's records to indicate that on the date of his retirement as well as the date of his death that his client was the FSM's lawful spouse, that a deemed election for SBP was created at the time of his retirement and that she is entitled to a dependent identification card, all benefits resulting from her being the spouse of a retired active duty member, SBP benefits, and any available VA (Department of Veterans Affairs) benefits resulting from his service.

34.  Public Law 83-239 authorized a voluntary survivorship annuity plan under which members of the Uniformed Services could provide an annuity for their spouses and/or eligible dependent children after the member's death in retirement. This legislation was first known as the Uniformed Services Contingency Option Act of 1953.  It was amended and renamed the Retired Serviceman's Family Protection Plan by Public Law 87-381.  Public Law 92-425 terminated the Retired Serviceman's Family Protection Plan for members and created the SBP. 

35.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name, and are irrevocable except as provided for by law.

36.  Dependency and Indemnity Compensation is a monthly benefit paid to eligible survivors of certain deceased veterans.  This compensation program is one of a wide array of benefits programs administered by and which are under the purview of the VA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the FSM indicated he did not wish to participate in the Retired Serviceman's Family Protection Plan [the predecessor to the SBP].

2.  The evidence shows the FSM repeated his election not to participate in the Retired Serviceman's Family Protection Plan [SBP].  This election was recorded in the DA Form 4240 (Test), Data for Payment of Retired Army Personnel, which was completed in his behalf.  In Part II (Survivor Benefit Plan Election), in Item 9, the FSM responded, "Yes," to the question, "Are you married?"  However, in Part I, Item 5, he indicated he was living at a Seaside, California, address with his fiancée who later became his spouse.  In Item 10, the FSM responded "Yes" to the question, "Do you have dependent children?"  In Item 11, the FSM placed an "X" in the space indicating he wanted no SBP coverage.  In Item 12, the FSM repeated his indication that he wanted no SBP coverage, even in a reduced amount.

3.  The evidence shows the FSM's spouse at the time, the applicant, was sent notification of his election not to participate in the SBP.  Notification was sent to her by mail since he was geographically located at Fort Ord, California, and she was in Anchorage, Alaska.

4.  The evidence shows that although the applicant was sent notification of the FSM's election not to participate in the SBP, the record is silent whether she was properly counseled or even received the notification.

5.  The evidence shows the FSM applied for and was granted a divorce from the applicant in Mexico.  After the FSM received the Mexican divorce, he traveled to Korea and was remarried.

6.  During an open enrollment season, in 1982, the FSM applied for an SBP annuity for his second spouse, and at a reduced amount.
7.  The FSM died on 18 June 1999.

8.  After the FSM's death, the applicant applied for an SBP annuity.  The applicant alleges to have received SBP benefits from the FSM's death in 1999 until July 2005.  These benefits payment were terminated and a debt was established for her for repayment of money that had been provided to her by the DFAS, apparently in error.

9.  The applicant contested DFAS' termination of SBP payments and the establishment of a debt for payments that had been made to her.  She requested that SBP payments that had been terminated be reinstated.  There is no evidence of an answer from DFAS to her contesting of termination of SBP payments and the establishment of a debt for payments that had been made to her.

10.  On an unspecified date, the applicant filed a Plaintiff's Brief on Declaratory Judgment in the District Court of the G-134th Judicial District of Dallas County, Texas.  In this brief, the applicant asked the court to declare the divorce the FSM obtained in Mexico in 1977 to be void.

11.  On 8 May 2006, the District Court of the G-134th Judicial District ordered that the applicant was entitled to a Declaratory Judgment that:  the Mexican divorce purported to have been entered into by the FSM on 11 April 1977, less than two weeks after he retired from the Army, was invalid due to his failure to have established residence in Mexico for a sufficient period to qualify for a Mexican divorce, and his failure to provide notice of the action to the applicant.  The court further declared that the applicant is the sole widow of the FSM, having married him on 14 February 1966, and that marriage not having been terminated by divorce during his lifetime.

12.  The applicant applied for the records of the deceased FSM to be corrected to show she was married to him at the time he retired; was still legally married to him at the time he applied for a reduced SBP annuity, for spouse only, during an open enrollment season; was his legal spouse at the time of his death; and to show she is entitled to receive a SBP annuity.

13.  An advisory opinion was requested from the DFAS in the processing of this case.  In the DFAS advisory opinion, the DFAS opined that the Texas Default Judgment was insufficient to establish the applicant as an eligible SBP beneficiary because the existence of a court order declaring that she is the FSM's lawful spouse does not overcome the fact that the FSM declined SBP coverage upon his retirement and affirmatively elected SBP coverage for an invalid spouse during an open SBP enrollment season.  Accordingly, the DFAS opined that administrative action could not be taken and a records correction was required.

14.  In her advisory opinion, the DFAS Senior Associate Counsel, stated that their office had been concerned with the validity of the Texas Default Judgment in regards whether the court was a court of competent jurisdiction; whether the applicant was entitled to SBP based on the fact that the member had declined SBP at the time of retirement and a notice of declination had been sent to the applicant; and finally, whether the applicant was entitled to SBP based on the fact that the member had affirmatively elected his second spouse as his beneficiary during an open enrollment season period for SBP.

15.  In determining whether the court was considered a court of competent jurisdiction, the DFAS referred to similar cases where the Comptroller General had considered the following factors:  a) whether one of the court litigants was domiciled in the State that issued the decision, b) whether the member was domiciled in the State that issued the court order at the time of his death, c) whether both court parties were represented by counsel, and d) whether the court that issued the order had original jurisdiction over the validity of the marriage.

16.  The Senior Associate Counsel then stated that the information in the file did not contain sufficient evidence for them to rule in favor of one claim over the other and a judicial determination was clearly required.  DFAS questioned whether the Texas court was a court of competent jurisdiction given the fact that both members were not residents of Texas; however, on the basis of the fact that the FSM's second spouse was properly served and had the ability to retain an attorney to either enter a special appearance and contest the jurisdiction of the court, or litigate the matter, but failed to do anything, along with the fact that the applicant was a resident of Texas, and that the Texas court had subject matter jurisdiction to determine the status of the marriage, DFAS concluded that the Texas court was the court of competent jurisdiction and, therefore, accepted the Default Judgment.

17.  DFAS noted that a member who was entitled to retired pay based on regular service was automatically a participant in the SBP unless the member elected not to participate in the plan.  They further noted that during the period 21 September 1972 until 1 March 1986, if the member elected not to participate in the SBP, the military service from which the member was retiring was required to notify the member's spouse that the member had declined SBP coverage.  DFAS further noted that a letter was sent to the applicant informing her of the FSM's decision not to elect SBP coverage.  The record was silent whether the applicant was properly counseled about the FSM's declination to participate in the SBP.  DFAS concluded that based on this evidence, one could conclude that the FSM's election not to participate in the SBP was void, and, as a result, the FSM was considered automatically enrolled in the SBP.

18.  DFAS also noted that, on the other hand, in other similar cases, the  Comptroller General had indicated that when a member affirmatively elects spouse coverage pursuant to the SBP for someone other than his lawful spouse, his election is invalid as to spouse coverage and no annuity is payable to the lawful spouse.  This same result was reached when a member applied for SBP spouse coverage for an invalid spouse during an open season period.

19.  The DFAS Senior Associate Counsel reiterated that DFAS could not conclusively establish the applicant as an eligible SBP beneficiary.

20.  Given that the applicant was sent notification informing her of the FSM's decision not to elect SBP coverage; and, given that the applicant apparently was not properly counseled about the FSM's declination to participate in the SBP; and, given that in the absence of proper counseling, it appears that he FSM's declination to participate in the SBP was void.  As a result, the FSM was considered automatically enrolled in the SBP in 1977 at the full base amount.  Given that a Declaratory Judgment was made by a court of competent jurisdiction that the Mexican divorce purported to have been entered into by the FSM on 11 April 1977 was invalid; and, given the court's declaration that the applicant is the sole widow of the FSM, having married him on 14 February 1966, and that marriage not having been terminated by divorce during his lifetime, the applicant is therefore entitled to a correction of the records of her deceased spouse, the FSM, to show she was married to him at the time he retired.  Further, the records should show she was still legally married to him at the time he applied for a reduced SBP annuity, for spouse only, during an open enrollment season; was his legal spouse at the time of his death; and to show she is entitled to receive a SBP annuity.  The record should also show that the FSM's 1982 election to enroll in the SBP at the reduced base amount was void.

21.  The applicant, having been determined to be the sole widow of the FSM, is also entitled to all benefits available to a surviving spouse, including medical, pharmacy, commissary, etc.; however, the applicant is advised that benefits that may accrued to her as a result of the FSM's service which are provided by the VA must be applied for through that agency of the Government since decisions made by the Army pertinent to these benefits is of no force or effect within that agency.

22.  In view of the foregoing, the FSM's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x __  __x_  __x_   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the applicant's deceased spouse, a former service member (FSM), be corrected to show:

	a.  that the FSM's decision to opt out of the SBP in 1977 was void because the applicant did not receive both notice and counseling concerning his election;

	b.  that she was married to him at the time he retired; 

	c.  that the applicant was still legally married to the FSM at the time he applied for a reduced SBP annuity, for spouse only, during an open enrollment season ;

	d.  that the applicant was his legal spouse at the time of his death;

	e.  that the applicant is entitled to receive a SBP annuity at the full base amount; however, DFAS should collect all the SBP premiums dating back to the FSM's date of retirement, 31 March 1977;

	f.  that the SBP annuity that was initiated for the applicant at the time of the FSM's death and terminated in July 2005 be reinstated in favor of the applicant effective the date of its termination;

	g.  that DFAS pay the applicant an SBP annuity, dating back to his date of death, 18 June 1999, minus past premiums and amounts previously paid but not recouped;

	h.  that all available military records be corrected to show that the applicant is entitled to all benefits available to a surviving spouse, including medical, pharmacy, commissary, etc.; and 

	i.  that the FSM's finance records be reviewed to determine if any recoupment action should be initiated against the FSM's alleged second spouse for SBP payment, if any payments were made after July 2005, to the date of this Record of Proceedings.
	
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to providing the applicant any available VA benefits resulting from the FSM's service.




___    x___
          CHAIRPERSON