RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070003024 


	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. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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 deceased former spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for former spouse coverage.

2.  The applicant states, in effect, that according to the FSM’s military papers that were given to her in the summer of 2005, the FSM was to be automatically enrolled in the SBP and pay the full cost for coverage of his wife and children, unless he submitted an election form to the contrary prior to his retirement.  The applicant also states, in effect, that she was never informed or notified in writing of the fact that the FSM had declined SBP coverage.  (The applicant does not indicate in the application if she understands that, if her request were to be approved, retroactive and possibly future SBP premiums would be deducted from the annuity payments.)

3.  The applicant provides a copy of a DA Form 2339 (Application for Voluntary Retirement), dated 25 May 1977; DA Form 4240 (Data for Payment of Retired Army Personnel), dated 31 August 1977; Circuit Court of Dale County, Alabama, Final Judgment of Divorce, dated 30 August 1984; and State of Georgia, Certificate of Death, recorded 29 December 1992.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S. Army on 19 January 1959, served continuously on active duty in the Regular Army, attained the rank of sergeant first class/pay grade E-7, and honorably retired from active duty on 31 August 1977 after completing a total of 22 years,
4 months, and 29 days for basic pay purposes.  The FSM was placed on the Army retired list, effective 1 September 1977.

2.  The date of the FSM's marriage to the applicant is not known.

3.  In support of the application, the applicant provides the following documents.

     a.  DA Form 2339 (Application for Voluntary Retirement), dated 25 May 1977. The Remarks section of this document contains, in pertinent part, the following entry, “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.”  The FSM placed his signature on the form immediately following this entry.
     b.  DA Form 4240 (Data for Payment of Retired Army Personnel), dated
31 August 1977.  Part IV (Survivor Benefit Plan Election) of the DA Form 4240 shows that the FSM declined SBP coverage and signed the document in Part VIII (Certification).  Part IX (Survivor Benefit Plan Certificates) of the DA Form 4240 shows that the applicant was not available for counseling, but she was informed by letter dated 5 August 1977 of the FSM’s decision.  However, only the counselor affixed her signature in Part IX of the DA Form 4240 and a copy of the letter is not available in the FSM’s Official Military Personnel File.

     c.  Circuit Court of Dale County, Alabama, Final Judgment of Divorce, dated 30 August 1984, shows that the applicant and FSM were divorced on 30 August 1984.  However, the document is absent any reference to the FSM’s Survivor Benefit Plan.

4.  The FSM died on 25 December 1992.  The Certificate of Death shows, in pertinent part, that the applicant was divorced at the time of his death.

5.  In the processing of this case, coordination was made with the Defense Finance and Accounting Service (DFAS), General Processing Branch, Cleveland, Ohio, in order to verify information relevant to the FSM's SBP election coverage and spousal notification.  This coordination resulted in the analyst being informed that there was no spousal notification letter on file and the FSM did not have any SBP coverage at the time of his death.

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.  Retiring members and spouses were to be informed of the SBP options and effects.

7.  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.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.


8.  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.  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.

9.  In the U. S. Court of Claims case of Barber vs. the United States, decided on 7 April 1982, the Court ruled that an election out of the SBP was not binding unless the statutory requirement was satisfied that notice of the declination be given to the spouse.  This was a U.S. Air Force case.  Air Force regulations at the time required that a copy of the notification of declination letter be filed with the service member’s election certificate.  The defendant failed to produce such a letter or other sufficient evidence to show the plaintiff had been notified of the service member’s declination.  Under those circumstances, the Court accepted as true the plaintiff’s allegation that the defendant did not comply with the notice requirement section of the statute and granted the plaintiff’s motion for summary judgment.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 of this Army regulation provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of the FSM should be corrected to show he elected to participate in the SBP for former spouse coverage because he was to be automatically enrolled in the SBP and pay the full cost for coverage for his wife (who apparently was then the applicant) unless he submitted an election form to the contrary prior to his retirement.  She also contends, in effect, that she was not notified that the FSM declined SBP spouse coverage, nor was she informed and counseled concerning the options available under the SBP for a survivor annuity, as required by law.
2.  The evidence of record shows that the FSM declined SBP coverage and certified his declination with his signature on 31 August  1977.

3.  At the time the FSM made his SBP decision, in those cases when the member elected not to participate in the SBP for spouse coverage, to participate at less than the maximum spouse coverage, or to exclude the spouse by designating children only as beneficiaries, it was required that the spouse was to be made aware of the member's decision and of the implications of that decision as it affected the spouse's future welfare.

4.  The DA Form 4240 indicates that the applicant was notified by letter on
5 August 1977 of the FSM’s declination of the SBP; however, a copy of the letter is not available.  Moreover, the date of the letter predates the FSM's SBP declination on 31 August 1977.  The lack of evidence indicating that the applicant was, in fact, served with the notification letter, and the inability to determine whether she was properly counseled as required by the statute, support the applicant's apparent contentions that she was not notified or counseled regarding the FSM’s declination to enroll in the SBP.  These circumstances establish the probability of legal error.

5.  The evidence of record shows that SBP coverage is based on category of coverage.  The evidence of record also shows that a spouse loses status as an SBP beneficiary upon divorce, unless the service member voluntarily elects to provide a former spouse annuity; or the election is made in order to comply with a court order; or the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

6.  By law, either incident to a proceeding of divorce or voluntarily, a member has one year after the divorce to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within one year of a date of a court order of divorce.

7.  The evidence of record shows that the FSM declined enrollment in the SBP at the time of his retirement.  The evidence of record also shows that the divorce decree pertaining to the applicant and FSM did not address the FSM’s SBP.  Consequently, there would have been no reason or requirement for the FSM to notify DFAS officials to enroll him in the SBP for former spouse coverage within a year of the divorce because the divorce court could not and did not order him to do so.  In addition, aside from the fact that the FSM had previously declined SBP coverage, the evidence of record shows that the applicant did not have the right to request a deemed election because the divorce decree did not specifically award her the SBP.

8.  The evidence of record indicates that the applicant was not notified in person or by letter of the available SBP options prior to the date the FSM retired from active duty.  The lack of evidence indicating that the applicant was counseled, or served with the notification letter, support the fact that the applicant was not made aware of the SBP.  Therefore, in accordance with Barber vs. the United States, the FSM’s records could be corrected to show he elected SBP spouse coverage on 31 August 1977.  Nonetheless, this would be a moot correction because the applicant never did become entitled by law to SBP former spouse coverage, as her divorce decree did not award her this.  Furthermore, there is no evidence the FSM voluntarily elected former spouse coverage on her behalf.
Therefore, in view of the foregoing, there is no basis for granting the applicant's request.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JI____  ___RML_  ___JRH__  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.



______John Infante______
          CHAIRPERSON



INDEX

CASE ID
AR20070003024
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19770831
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.0200.0000
2.

3.

4.

5.

6.