IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20080006203 


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:

Through Counsel, the applicant requests, in effect, reconsideration of her earlier request to receive the Survivor Benefit Plan (SBP) annuity due based on the death of her former husband, a former service member (FSM).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's previous request to receive the SBP annuity due as the former spouse of the FSM.

2.  Counsel states, in effect, that the previous Board decision denied the applicant's request based on the absence of the consent of the FSM's current spouse.  However, the Board did indicate that the applicant could pursue a remedy by returning to court to resolve the issue and if successful, she could apply to the Board for reconsideration.  Counsel claims the applicant did go back to a Kentucky Court, Johnson Family Court, where by motion the 30 November 2007 Order joined the widow as the third-party to the state action.  The Court found the third party was correctly joined to the action and was served with all Orders of the Court at her address.  On 7 March 2008, the Court Judgment was rendered and found the applicant prevailed over the third party based on having made a formal, irrevocable, choice to be the SBP participant, and therefore, should be awarded all benefits set forth and is entitled to SBP benefits from 
31 December 2003 until her death, as she has the status as designated, primary, and irrevocable SBP beneficiary.

3.  Counsel provides a Brief outlining the applicant's request and a court judgment in support of the application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060013553 on 12 June 2007.

2.  During its original review of the applicant's case, the Board concluded that absent consent of the FSM's widow, who was his spouse at the time of his death, to correct the FSM's records to provide for former spouse coverage in lieu of spouse coverage, the applicant's only remedy was to return to court, join the FSM's widow as a party to ensure her due process, and petition the court to resolve this issue.

3.  The applicant now provides as new evidence a Commonwealth of Kentucky, Johnson Family Court, Judgment, dated 6 March 2007.  This document indicates that on 5 November 2004, the Commonwealth of Kentucky, Johnson Family Court, based on the applicant's Motion to Reopen to Amend the Post-Decree Order of 6 May 1988, to conform to the Former Military Spouse Protection Act under Public Law 97-252, and Election of Former Spouse as Beneficiary under SBP Public Law 98-525, ordered the Department of the Army (DA), United States (U.S.) Finance and Accounting Center, to pay the applicant the sum of $500.00 a month out of any military retired/retainer pay or SBP payments of the FSM as monies for child support and maintenance pursuant to Kentucky law.  It stated that the order was pursuant to the election of the former spouse as beneficiary under Public Law 98-525 and ordered the Director of Administration, Finance and Accounting Center to pay the applicant all survivor retirement benefits from the FSM's death until her death.  On 30 November 2007, the Commonwealth of Kentucky, Johnson Family Court Judgment based upon the applicant's Motion to Reopen to Amend the Post-Decree Order of May 1988, to conform to the Former Military Spouse Protection Act, joined the FSM's widow, a third party to this action judgment.  The FSM's widow was served with all Motions and Orders of the Court at her correct address with the U.S. Post Office confirming delivery.  


4.  The Court determined that the applicant, whose marriage ended after
17 years to the FSM, had never surrendered, never changed and never forfeited her irrevocable status as an SBP participant.  The FSM's subsequent marriage renders the third party (widow) secondary to the benefits of the applicant who is primary and irrevocable.  The court further stated that the applicant was entitled to SBP benefits since the death of the FSM (31 December 2003) until her death, as she is the primary, irrevocable, chosen SBP beneficiary.

5.  The FSM's record shows he initially enlisted in the Regular Army (RA) and entered active duty on 16 January 1948, and continuously served until being honorably discharged on 18 October 1949.

6.  The FSM's record also shows he enlisted in the RA and entered active duty on 4 December 1952.  

7.  The FSM's record shows he married the applicant on 15 January 1957.

8.  On 1 February 1972, the FSM was honorably retired by reason of permanent disability.  It also shows that at that time he had completed a total of 20 years and 11 months of active military service and that he held the rank of staff sergeant (SSG).  

9.  On an unknown date, the FSM enrolled in the SBP.

10.  On 30 June 1981, the FSM and the applicant were divorced.  Subsequently, on 13 March 1982, the FSM and the applicant were remarried and were again divorced on 20 July 1983.  SBP was not part of the divorce decree.  

11.  On 10 January 1986, the FSM married [J____].

12.  On 6 May 1988, a post divorce decree order was entered which mentioned SBP.  However, SBP was not awarded to the applicant.  However, the decree mentions payment from retired pay or survivors benefit.

13.  On 1 March 1989, the FSM terminated his SBP coverage under the special grandfather provision which allowed for remarriage termination.

14.  There is no evidence of record or independent evidence of record which indicates the FSM or the applicant ever submitted a written request for a deemed election for Former Spouse coverage within 1 year of their divorce.  

15.  On 31 December 2003, the FSM died at the age of 74.  

16.  In connection with the processing of this case, an advisory opinion was obtained from the Assistant Counsel of the Defense Finance and Accounting Service (DFAS), Military and Civilian Law Directorate, Office of General Counsel. This DFAS legal representative stated that under certain circumstances, a posthumous award of SBP can be valid.  However, in this case, DFAS would not consider the validity of the 2004 court order to award SBP because the member was not an SBP participant when he died, having withdrawn from SBP on 
1 March 1989, with the consent of his then current spouse.  The Assistant Counsel stated that as part of the Defense Authorization Act enacted on 
4 December 1987, Congress created authority for certain remarried participants to withdraw from the plan.  Under Public Law 100-180, 631, SBP participants could withdraw from the SBP if they had been married before 1 March 1986, at a time when they were a participant in the plan but did not currently have an eligible spouse or beneficiary.  

17.  The DFAS counsel further states that a review of the FSM's record shows he submitted a letter requesting withdrawal from the SBP on 28 February 1989, which included the concurrence with the SBP termination from his current spouse.  The one year period to withdraw from SBP under Public Law 100-180, 631 expired on 3 March 1989.  Therefore, on 1 March 1989, the FSM was no longer a participant in the SBP, having complied with the requirements of Public Law 100-180, 631.  Consequently, when the Johnson Family Court of Johnson County Kentucky, entered an Order on 5 November 2004, designating the applicant as the irrevocable "Survivor Beneficiary" of the FSM's retirement, there was no retirement benefit/annuity for the court to award.  As a result of the FSM terminating his SBP participation, DFAS cannot recognize the 2004 court order awarding the applicant former spouse SBP benefits.  The DFAS Counsel finally concludes that it is DFAS's determination that the applicant is not entitled to SBP annuity payments after the death of the FSM, because the FSM was not a member of the SBP at the time of his death.  The court order obtained in March 2008 has no effect on this determination. 

18.  On 17 February 2009, the applicant was provided a copy of the DFAS advisory opinion in order to have the opportunity to respond to or rebut its contents.  This document was returned to sender.  As a result, a copy was mailed to her attorney on 5 May 2009.  After no response was received from the attorney, a member of the Board attempted to call the attorney; however, all available phone numbers have been disconnected.  

19.  Public Law 92-425, 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.  It established a 12-month Open Season for those who retired prior to enactment of the law.  Elections are made by category, not by name.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  For court orders issued prior to 14 November 1986, if any portion of a member’s military retired pay is based on disability retired pay, the orders are unenforceable under the Act.

20.  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.  

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

22.  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.

23.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.  This provision applies only to divorces finalized after 14 November 1986.

24.  Public Law 100-180, enacted 4 December 1987, permitted retired members with previously suspended spouse coverage to withdraw from participation if the member remarried before 1 March 1986, with spouse's written concurrence, and within one year period to request termination participation during the period 
3 March 1988 through 2 March 1989.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to an SBP annuity as the Former Spouse was carefully considered.  By law a member could withdraw from SBP participation if the member remarried before 1 March 1986, with the spouse's written concurrence during the period 3 March 1988 through 2 March 1989.

2.  The evidence of record confirms the applicant and the FSM divorced in July 1983 and that the FSM remarried in January 1986.  

3.  The evidence of record also confirms that the FSM requested to be withdrawn from the SBP, on 28 February 1989, which was during the one year period authorized to withdraw from the SBP under the provisions of Public Law 100-180 and that his current spouse concurred with his SBP termination request (which facts were not known to the Board that originally considered this case).  Therefore, as a result of the FSM terminating his SBP participation, the applicant is not entitled to the SBP annuity payments awarded in 2004 after the death of the FSM because the FSM was not a member of SBP at the time of his death.  Furthermore, based on his SBP termination there is not a retirement benefit/annuity to award the applicant.

4.  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 this requirement.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____X___  __X____  ___X____  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 to amend the decision of the ABCMR set forth in Docket Number AR20060013553, dated 12 June 2007.




      _______ _   _X______   ___
               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)                                         AR20080006203



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ABCMR Record of Proceedings (cont)                                         AR20080006203


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