IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080002359 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that she be paid the Survivor Benefit Program (SBP) annuity as the former spouse of her ex-husband, a former service member (FSM). 

2.  The applicant states, that her ex-husband, a FSM contacted her in January 1991, approximately 3 years after their divorce in December 1987, and informed her that he was designating her as the beneficiary of his SBP annuity because she had agreed to waive her rights to his retirement benefits upon their divorce.  She continues by stating that he sent her the paperwork to complete, which she did and sent back to him and she was later notified of the SBP election he had made and she was instructed to sign it and return it, which she did.  She goes on to state that when her ex-husband died she contacted officials at the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio to ascertain the procedures for requesting payment of the SBP annuity.  She completed the forms and was later informed that she was not eligible to receive the SBP annuity because her ex-husband had elected “Spouse only” option and the divorce decree did not indicate that she had been awarded SBP benefits.  She also states that the FSM remarried in September 1991 and did not make any changes to his SBP beneficiary during his 16 years of marriage. 

3.  The applicant provides a two-page letter of explanation, a copy of her marriage license to the FSM, documents from the Retirement Service Office in Hawaii dated in 1991, a copy of the FSM death certificate, a Verification for Survivor Annuity (DD Form 2656-7), a letter from the applicant to the DFAS in London, Kentucky, a Form W-4P, and a letter from the DFAS Retired and Annuity Pay Branch in London, Kentucky. 

CONSIDERATION OF EVIDENCE:

1.  The FSM initially enlisted on 19 May 1970 and served until he was honorably discharged on 23 December 1971.  He married the applicant on 30 September 1972. 

2.  On 13 November 1972, he again enlisted in the Regular Army for a period of 3 years.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 4 August 1985. 

3.  On 17 May 1990, while serving in the Defense Attaché Office in Singapore as an intelligence assistant, the FSM submitted his request for voluntary retirement to be effective 1 May 1991.  At the time he submitted his application for retirement, he indicated that he was married and named the applicant as his spouse and nearest relative.  

4.  On 23 January 1991, the FSM made his SBP election for the reduced amount of $300.00.  He indicated that he was married and elected the “Spouse Only” option.  He named the applicant as his spouse at the time. 

5.  The FSM was honorably released from active duty (REFRAD) on 30 April 1991 and was transferred to the Retired List effective 1 May 1991.  At the time of his REFRAD he indicated that the applicant was his nearest relative.

6.  A review of his Official Military Personnel File (OMPF) shows that the FSM’s records up until he was REFRAD indicate that he was married to the applicant.  Additionally, the FSM’s retirement orders dated 25 June 1990 with an effective date of 30 April 1991, indicate that the FSM was authorized movement of his dependent wife (applicant’s name listed) from Singapore to a location of personal choice for retirement.

7.  The death certificate provided by the applicant shows that the FSM died on 14 November 2007, in Seven Hills, Ohio and that he was survived by a spouse (Shirley).

8.  In the processing of this case a staff member of the Board contacted officials at DFAS - Cleveland to ascertain the FSM’s SBP status. Officials at DFAS indicate that the FSM elected “Spouse Only” option at the reduced amount of $300.00 and he indicated that the applicant was his spouse.  There is no record of the FSM being divorced from the applicant and there is no change of option from spouse to former spouse indicated in his records.  No SBP annuity is being paid from the FSM’s account at this time.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.  Elections are made by category, not by name; 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 full spouse (or child only coverage, if applicable) coverage.

10.  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.

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  Insurable interest option was authorized for beneficiaries following divorce if previously covered under the “spouse” option.

12.  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.

13.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant claims she was divorced from the FSM on 31 December 1987, the FSM continued to claim the applicant as his spouse until the time of his retirement and he designated her as the beneficiary of his SBP annuity under the “Spouse Only” option.   

2.  Information obtained from the DFAS indicates that the FSM never changed that option to “Former Spouse” and never indicated that he was divorced or remarried. 

3.  Inasmuch as SBP elections are made by category and not by name, and since the FSM never changed his election option from “Spouse Only” to “Former Spouse”, it appears that the spouse he had at the time of his death is the eligible beneficiary for his SBP.

4.  Since the FSM died with spouse SBP coverage in effect, it appears that his legal spouse at the time of his death is the lawful beneficiary of his SBP.  Therefore, the Board will not take any action to prevent the lawful beneficiary from becoming eligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

5.  The Board may not divest the FSM’s widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM’s widow 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 FSM’s widow renouncing her right to the SBP payment.  The applicant should include with any request for reconsideration a complete copy of the divorce decree that terminated her marriage to the FSM.

6.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

   



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002359



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ABCMR Record of Proceedings (cont)                                         AR20080002359



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