RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070000870 


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

2.  The applicant states, in effect, that when the FSM retired in 1975 they were assured several times by the Army representative that the SBP which the FSM signed up for would never be taken out of her name (his wife at the time). 

3.  The applicant provides a marriage record; the FSM’s death certificate; and a divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM entered active duty on 4 January 1954.  He and the applicant married on 23 January 1965.  

2.  The FSM’s DA Form 4240 dated 12 May 1975, shows he enrolled in the SBP for spouse only coverage, reduced base amount ($400.00).

3.  The FSM retired in the rank of sergeant first class on 31 July 1975 after completing over 21 years of active service.

4.  The FSM and the applicant divorced on 26 October 1989.  The divorce decree does not mention the SBP.

5.  The FSM remarried on an unknown date.

6.  On 8 September 2006, the FSM died.  His death certificate shows that he was married to B---- E----. 

7.  Records at the Defense Finance and Accounting Service show the FSM’s widow is on the SBP annuity but she is getting Dependency and Indemnity Compensation (DIC).

8.  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. 

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

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

11.  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.

12.  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.

13.  The Department of Veterans Affairs (VA) booklet, Federal Benefits for Veterans and Dependents, 2007 edition states that DIC payments may be available for surviving spouses of deceased service members or veterans, who have not remarried.  To be eligible, the deceased must have died from (1) a disease or injury incurred or aggravated while on active duty or active duty training; (2) an injury incurred or aggravated in line of duty while on inactive duty training or (3) a disability compensable by VA. 

14.  Title 10, U.S. Code, section 1450(c) requires an SBP offset for the amount of DIC paid.  Section 1450(c)(1) states that if, upon the death of a member participating in the SBP, the surviving spouse or former spouse is also entitled to DIC, the surviving spouse or former spouse may be paid an SBP annuity but only in the amount that the annuity otherwise payable would exceed that compensation.

15.  Title 10, U.S. Code, section 1450(k)(1) states that, if a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to DIC because of remarriage of the spouse or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 55 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of DIC, to the amount of the annuity which would be in effect with respect to the surviving spouse or former spouse if the adjustment under subsection (c) had never been made. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she and the FSM were assured several times by the Army representative that the SBP would never be taken out of her name was considered.  However, elections are made by category, not by name.  As long as she was the FSM’s wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

2.  There is no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit.  

3.  There is evidence to show the FSM remarried, although the date is unknown. At the one-year anniversary of their marriage his widow acquired a vested interest in the SBP as the FSM's legal beneficiary.  Although the widow may not be currently receiving the SBP, should she ever lose her eligibility to receive DIC she might be eligible to receive the SBP.   

4.  The Army Board for Correction of Military Records (ABCMR) may not act to terminate her rights in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s widow of a property interest without due process of law.  The ABCMR would only be empowered to correct the FSM’s records to grant the applicant a SBP annuity under one of two circumstances:

(a) The FSM’s widow executes a signed notarized affidavit relinquishing her rights in the SBP annuity in favor of the applicant.  
   
(b) The applicant obtains an order from a State Court of competent jurisdiction, in an action joining the FSM’s widow as a party, declaring that the applicant is the rightful beneficiary of the FSM’s SBP annuity.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s widow or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KN_____  __SP____  _EM____  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.



__Kathleen Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000870
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.