IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080009701 


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 the records of her deceased former husband, a former service member (FSM), be corrected to show he timely changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage and, in effect, entitlement to SBP benefits based on the death of her deceased former husband.

2.  The applicant states that when she and the FSM were divorced, she received a portion of his retirement pay directly from him instead of receiving payments through the Defense Finance and Accounting Service (DFAS).

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Final Divorce Decree and Order, dated 23 March 2006.

	b.  Report and Certificate of Marriage, dated 11 May 1983.

	c.  DD Form 2064 (Certificate of Death (Overseas)), dated 18 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 1 February 1963 and enlisted in the Regular Army on 10 February 1982.  He subsequently executed a series of reenlistments and/or extensions in the Regular Army and was placed on the retired list in his retired rank/grade of First Sergeant (1SG)/E-8 on 28 February 2002.  He was credited with 20 years and 21 days of total active service.

2.  The FSM’s records show he married his spouse Chong, the applicant, on 11 May 1983.  Their marriage lasted 22 years and 9 months, during which the FSM served 18 years and 10 months or more of creditable service toward retirement.  

3.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), is not available for review with this case; however, DFAS records indicate that at the time of his retirement, he elected full SBP coverage for spouse and dependent children.  He was still married to Chong at the time he made this election.

4.  On 23 March 2006, the applicant and the FSM were divorced.  The Divorce Decree ordered the FSM to effect the division of the FSM’s retired pay.  However, the Decree was silent on the SBP (it did not address the SBP).

5.  There is no indication that the FSM informed DFAS of his divorce or that the FSM made an election to change SBP coverage from 'spouse" to former spouse" within one year of the date of the divorce.  Furthermore, there is no indication that the applicant made a deemed election to the DFAS Retired Pay Office within one year of her divorce.

6.  DFAS records show that the FSM continued to pay SBP premiums until his death on 25 October 2006 in Afghanistan as a result of natural causes. 

7.  The FSM’s Certificate of death shows that at the time of death, the FSM was married to "Ingeborg" and that she was identified as the FSM’s next of kin.  The circumstances surrounding his marriage to Ingeborg are not available for review with this case.

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), dated 8 September 1982, established SBP coverage for former spouses of retiring members.

10.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).
11.  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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time of his retirement, the FSM elected to participate in the SBP for spouse and children coverage.  After his retirement, the FSM and the applicant were divorced on 23 March 2006.  The Divorce Decree did not require the FSM to change his SBP election.  

2.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which is a change the evidence of record shows he did not make.  Furthermore, the applicant's death certificate indicates that the FSM was remarried after their divorce.  Therefore, any SBP benefits would have been paid to the beneficiary in effect at the FSM’s time of death, his spouse, not his former spouse, if they had been married for at least one year or his spouse was the mother of issue of that marriage. 

3.  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 did not submit evidence that would satisfy this requirement in this case.  Therefore, she is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xx____  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.



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      _______ _   _______   ___
               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)                                         AR20080009701



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ABCMR Record of Proceedings (cont)                                         AR20080009701



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