RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060015384 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Susan Powers

Member

Mr. Edward Montgomery

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 service member (SM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 

2.  The applicant states, in effect, per the court-ordered divorce decree, she should be the SBP beneficiary.  She contends that they were married in 1967 and when the SM was commissioned in the Army in 1968 she was named beneficiary of his SBP.  She states that she was married to the SM for 27 years, during his entire military career, at the time of his medical retirement, and long after that.  She points out that the beneficiary was changed to the SM’s current spouse without her knowledge or approval or notification to any court or attorney.    
3.  The applicant provides a copy of their divorce decree. 

CONSIDERATION OF EVIDENCE:

1.  The SM and the applicant married on 15 June 1967.  He was commissioned a Reserve officer in the U.S. Army Reserve on 15 February 1968 and entered active duty on 14 April 1968.  Apparently, the applicant elected not to participate in the SBP.  On 23 March 1973, he was permanently retired by reason of physical disability in the rank of captain.       

2.  On 29 October 1974, the SM sent the U.S. Army Finance and Accounting Center (USAFAC) a letter requesting termination of unauthorized withholding of SBP.  On 20 November 1974, USAFAC sent the SM a letter explaining that all members retired on or after 21 September 1972 were automatically covered by the provisions of the SBP unless an election was made not to participate.  USAFAC instructed the SM to send a copy of his election not to participate.  On 
25 November 1974, the SM sent USAFAC a “3rd Request” for termination of SBP.  

3.  On 22 May 1975, the Chief, Retired Activities Branch, U.S. Army Military Personnel Center replied to the SM’s letters, dated 29 October 1974 and 
25 November 1974, requesting withdrawal from the SBP.  This letter stated that the SM’s case was referred to that office by USAFAC and that the Department of the Army SBP Board met on 2 May 1975 and granted authority for the SM to make [or decline] an election under the plan.  The SM was instructed to complete and return the DD Form 1883 (Survivor Benefit Plan Election Certificate) by 
25 June 1975.  It appears the SM did not return the DD Form 1883 and he was automatically enrolled in the SBP with spouse coverage.       

4.  The SM and the applicant divorced on 1 December 1994.  The divorce decree states, in pertinent part, that “At the time of Defendant’s medical retirement from the military Defendant elected the Survivor Benefit Plan (SBP) naming the Plaintiff as the beneficiary after Defendant’s death.  The Defendant agrees that in all events the Plaintiff shall continue to be designated as his “former spouse” for all SBP purposes under or relating to the Defendant’s military service and retirement.  Defendant shall continue to pay any necessary SBP premium and Defendant shall execute any and all documents required to continue and maintain the SBP election and the designation of Plaintiff as beneficiary after the dissolution of marriage of the parties, including but not limited to such notices and requests as may be required to be made within one year from the date of the Judgment of Dissolution of Marriage making in reference to the court order requiring continuation of the SBP election and designation of Plaintiff as beneficiary.”  

5.  The SM remarried in December 1994.

6.  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.  An election to decline to participate in the SBP must be made prior to the effective date of retirement, or else coverage automatically defaults to spouse coverage.

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

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

9.  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.

10.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  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.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.
11.  Title 10, U.S. Code, section 1450(f)(3)(A) permits the former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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.  It appears the SM was automatically enrolled in the SBP for spouse coverage when, after he was given a second chance, he did not complete and return the DD Form 1883 by 25 June 1975.

2.  It is recognized that the divorce decree awarded the SBP to the applicant and specifically ordered the SM to timely execute all documents necessary to maintain the applicant’s designation as a former spouse SBP beneficiary.  Unfortunately, it appears the SM did not take the action directed by the court, nor did the applicant make a request for a deemed election of the SBP.  
   
3.  Further, the SM remarried in December 1994.  At the one-year anniversary of their marriage, his current spouse acquired a vested interest in the SBP as the SM's legal beneficiary.  Absent a statement from the SM's spouse asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.  

4.  The Board may not divest the SM’s current spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the SM.  This court action would have to include the SM’s current spouse as a party in order to protect her property interest and rights.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the SM’s current spouse renouncing her right to the SBP payment. 

5.  Regrettably, there is no basis for granting the applicant's request.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KN_____  __SP____  __EM____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.



___Kathleen Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20060015384
SUFFIX

RECON

DATE BOARDED
20070710
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.