RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070004649 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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 military records of her deceased spouse, an active duty Soldier who died while on active duty be corrected to show the applicant is the beneficiary for all Survivor Benefit Plan annuities. 

2.  The applicant states that her lawyer did not tell her, when she divorced that the divorce decree should contain specific language awarding her Survivor Benefit Plan (SBP) from her husband, an active duty soldier at the time of the divorce.  She furthers states that a representative from the Casualty Department told her to get a new court order and then she would be entitled to SBP annuities. 

3.  The applicant provides marriage and divorce legal documents, a personal letter from herself and a separate letter from the executor of her former husband's estate, death certificates and notices, and newspaper clippings and photographs of her former spouse's funeral and obituary.  A verification letter, which shows the applicant and former spouse, were in marriage counseling with a stated goal of reconciliation.

CONSIDERATION OF EVIDENCE:

1.  The deceased Soldier's records show he entered active duty on 2 October 1962 and served for three years then entered the United States Army Reserve (Control Group). He and the applicant married on 11 March 1970.  Records show he returned to active duty status with the Army National Guard on 18 April 1987 and remained continuously on active duty until his sudden death on 17 June 2002.  A Line of Duty investigation (LOD) was completed and the Soldier's death was determined to be in the line of duty.

2.  On 4 December 1995, the applicant and deceased Soldier were divorced and it was adjudged in Family Court in the Parish of Baton Rouge in the State of Louisiana.  In the divorce decree presented to the Board, there is no discussion nor was it adjudged that the applicant, the former spouse of the deceased Soldier, was awarded benefits under the SBP.

3.  On 10 January 2006, the son, now the court appointed Administrator to his father's estate petitioned the Probate Court to supplement or amend the estate.  The son asked the Probate Court to add additional personal property to the FSM estate to wit: "The beneficiary ownership of any and all Survival Benefits, due under a Survival Benefit Plan (SBP) with the deemed election being made by the applicant."  This request was completed in Probate Court of the 19th Judicial District Court, Parish of East Baton Rouge in the State of Louisiana. 
4.  On 3 February 2006, the applicant completed DD Form 2656-7 (Verification for Survivor Annuity) requesting SBP Spouse Coverage as the former spouse of the deceased Soldier.  The applicant indicated on DD Form 2656-7 she had a court order awarding her SBP annuities.

5.  On 14 September 2006, the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay wrote to the applicant and stated, in effect, the applicant is not eligible to receive the SBP as the former spouse of an active duty Soldier because there was not a court order in existence prior to the Soldier's death awarding her SBP.  

6.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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.  An election, once made, was irrevocable except in certain circumstances.  

7.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  The USFSPA contains strict jurisdictional requirements.  The State court must have personal jurisdiction over the FSM by virtue of the FSM’s residence in the state (other than pursuant to military orders), domicile in the State, or consent.

8.  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.”

9.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) 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 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.

11.  Public Law 107-107, enacted 28 December 2001, provided expanded benefits under the SBP for the qualified survivors of eligible members who die in the line of duty.  These benefits are effective for a death on or after 10 September 2001.  A qualified death under the provisions of Title 10, U. S. Code, section 1448(d), as amended by Public Law 107-107, is a death of a member on active duty who died in the line of duty or died not in the line of duty but was retirement eligible.  A former spouse qualifies for benefits under this section if, at the time of the member's death, there existed a court order or spousal agreement to provide an annuity to the former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was not awarded SBP in the 1995-divorce decree nor did the deceased Soldier voluntarily elect in writing to appoint his former spouse as his SBP beneficiary should he become eligible for retired military pay.  The deceased Soldier was on active duty at the time of his premature death and had been on active duty since on or about 18 April 1987. 

2.  The administrative executor of her former spouse's estate petitioned the state probate courts 3 years after the death of Soldier to amend the probate proceedings involving the deceased Soldier's estate to show the applicant was entitled to SBP annuities.  Nearly 10 years had lapsed from the date of divorce to the probate court ordered amendment to the estate assets purportedly awarding the applicant SBP entitlements. 

3.  Public law written in 1982 specifically requires the state court to award the former spouse SBP entitlements in the initial divorce proceedings and judgment. The military service member also had the option of declaring in writing that his former spouse would be eligible for SBP should the service member become eligible for retired pay from his active duty service.

4.  The applicant and the deceased Soldier did not comply with the intent of the public law and now the applicant, the former spouse, is requesting her former spouse's military records be corrected to show she was eligible for SBP.  The applicant did not file within the time period specified by law nor does the divorce decree award her retirement pay or SBP annuities.  The probate court order awarding the former spouse SBP was adjudged after the Soldier's death.  The probate court order could transfer no greater property interest in the SBP entitlements than the FSM had.  The FSM failed to enroll in SBP.  So there was no property interest in SBP entitlements for the Probate Court to transfer to the applicant.  Therefore, there is insufficient evidence to support granting the applicant her request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WP ___  ___LD __  ___JP___  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.




_____William Powers________
          CHAIRPERSON


INDEX

CASE ID
AR20070004649
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.01
2.

3.

4.

5.

6.