RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060015805 


	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

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Ronald D. Grant

Member

Ms. Rowland C. Heflin

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 defers to counsel.

2.  The applicant provides their divorce decree; a Mississippi State Department of Health Vital Records Statistical Record of Marriage, dated 27 December 1963; a Superior Court of California, County of San Francisco (Stipulated Military Qualifying Court Order), dated 23 August 2005; counsel's letter to the Defense Finance and Accounting Service (DFAS) with enclosures, dated 16 September 2005, and its certified mail return receipt; and a letter from DFAS, dated 
5 October 2006.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests that the records of the FSM be corrected to show the applicant made a timely request for a deemed election of his SBP.

2.  Counsel states, in effect, that the applicant and the FSM agreed to a Stipulated Military Qualifying Court Order, dated 23 August 2005, ordering the FSM to make the applicant the irrevocable beneficiary of the survivor benefit portion of the FSM's pension.  At no time was her office or the applicant provided paperwork necessary to make the election to effectuate the applicant's SBP protection.

3.  The FSM recently remarried, and he then unfortunately passed away on 
24 September 2006.  Shortly thereafter, the applicant received a letter from DFAS indicating that her benefits had been terminated due to her failure to make an election for the SBP.  Counsel states that the applicant would have made an election had DFAS notified her or the applicant and/or provided the paperwork to make said election.

CONSIDERATION OF EVIDENCE:

1.  The FSM had prior service in the U.S. Army Reserve.  He enlisted in the Regular Army on 7 August 1964.  

2.  On 29 February 1984, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  On this form, he indicated that he elected spouse and children SBP coverage, full base amount.  On 29 February 1984, the FSM retired.

3.  The FSM and the applicant divorced on 20 November 1989.  The divorce decree stated, in part, that "Respondent [the FSM] is ordered, if he hasn't already done so, to pay premiums for Survivors Benefit Plan as the Petitioner would not be entitled to any benefits if the Respondent died without this plan." 

4.  There is no evidence that shows the FSM submitted a written request, or that the applicant submitted a written request for a deemed election, to DFAS to change the SBP coverage from spouse to former spouse coverage within one year of the divorce.

5.  The FSM remarried on 28 October 2004.

6.  The applicant provided a Superior Court of California, County of San Francisco (Stipulated Military Qualifying Court Order), dated 23 August 2005, that shows the FSM agreed to the amendment to their previous divorce decree of 20 November 1989.  It states in paragraph 7 of the order that "The Court hereby orders that the Former Spouse shall be the Member's irrevocable beneficiary of the survivor's Survivor Benefit Plan (SBP) Annuity through Member's military retirement.  Further, the Member also agrees to make the necessary election in a timely manner to effectuate the SBP coverage for the Former Spouse and shall execute such paperwork as is required.  The Former Spouse's coverage shall be based on the former spouse-only option and the full amount of the Member's monthly retired pay."

7.  The FSM died on 24 September 2006.  

8.  Information obtained from DFAS on 23 May 2007 revealed the FSM's widow as the beneficiary of the SBP annuity.

9.  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.  Elections are made by category, not by name.  

10.  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.  

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

12.  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.

13.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a 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.  The FSM retired on 29 February 1984 and elected SBP spouse and children coverage.  He was married to the applicant at that time.

2.  The FSM divorced the applicant on 20 November 1989.  The divorce decree mentions the SBP.  It stated, "Respondent [the FSM] is ordered, if he hasn't already done so, to pay premiums for Survivors Benefit Plan as the Petitioner would not be entitled to any benefits if the Respondent died without this plan."  

3.  The applicant was in effect awarded the SBP in this divorce decree.  She therefore had until 19 November 1990 to make a request for a deemed election of the SBP.  However, there is no evidence of record that shows the applicant submitted a written request for a deemed election for former spouse coverage, and it appears the FSM may have made a considered decision not to comply with the terms of the divorce decree.  

4.  The FSM remarried on 28 October 2004.  By law, the current spouse became the lawful beneficiary for SBP coverage on 28 October 2005, on the first anniversary of the remarriage.

5.  If the original divorce degree had not mentioned SBP, then the August 
2005 court order would have effectively been the first time the applicant could have made a request for a deemed election.  But as it was, the applicant failed to make a timely deemed election by November 1990.  In addition, the applicant did not make a request for a deemed election by August 2006 either.  The applicant's attorney did mail to DFAS a copy of the August 2005 court order in September 2005 with a cover letter, but the letter did not request a deemed election.  There is no special paperwork necessary to make a request for a deemed election.  A separate piece of paper attached to the divorce decree (or amended court order, if the SBP had not been mentioned in the 1989 decree) stating simply "a request for a deemed election is made," from either the applicant or her attorney, would have sufficed.

6.  The FSM died on 24 September 2006.  The evidence of record shows he was married at the time of his death.  Since the lawful beneficiary of the FSM's SBP is his widow, in the absence of a timely deemed election the ABCMR cannot take away her right to the SBP without her irrevocable waiver of the SBP annuity.  If the widow declines to waive if, then the ABCMR cannot take away the SBP because it would violate her constitutional right to due process of the law.  Instead, the applicant may petition the court having jurisdiction over the SBP matter for relief, ask the court to join the widow as party to ensure due process, and request reconsideration from ABCMR if she obtains court-ordered relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MKP  _  __RDG__  ___RCH_  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.




__ Margaret K. Patterson __
          CHAIRPERSON







INDEX

CASE ID
AR20060015805
SUFFIX

RECON

DATE BOARDED
14 JUNE 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
137.0200.0000
2.

3.

4.

5.

6.