IN THE CASE OF:	

		BOARD DATE:	 23 September 2008 

		DOCKET NUMBER:  AR20080010426 


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 she submitted a deemed [sic] election in 1999 and was divorced in 2001.  She also adds that she mailed her divorce papers within one year of her divorce and was told they were received.  However, after the FSM’s death in 2008, she discovered that the divorce papers were not received by the office that she sent those papers to.  She also states that she was married to the FSM for 24 years and when she deemed [sic] the election in 1999, she never changed her mind about the SBP, and that she helped pay for the SBP premiums.  

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

	a.  Self-authored statement, dated 4 June 2008;

	b.  Equitable Distribution Judgment and Orders, dated 25 September 2001;

	c.  Marriage License, dated 13 February 1971; and

	d.  Certificate of Death, dated 26 May 2008;
CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 6 February 1954 and married his spouse D____, the applicant, on 13 February 1971.    

2.  The FSM’s records also show he enlisted in the Regular Army on 13 September 1971.  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 Master Sergeant (MSG)/E-8 on 30 April 1999.  He was credited with 20 years, 3 months, and 18 days of total active service.

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

4.  On 14 April 1999, the applicant and the FSM separated.  The Equitable Distribution Judgment and Order, dated 11 September 2001, stated that the FSM was paying a portion of the monthly premiums toward his participation in the SBP and consented to continue making these payments.  

5.  On 14 March 2001, the applicant and FSM were divorced.

6.  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 1 year of the date of the divorce.  

7.  On 19 March 2003, the applicant submitted a deemed SBP election to the DFAS Retired Pay Office.

8.  On 19 June 2004, the FSM married his second spouse, L___.

9.  DFAS records show that the FSM continued to pay SBP premiums until his death on 26 May 2008. 

10.  The FSM’s Certificate of death shows that at the time of death, the FSM was married to "L___" and that she was identified as the surviving spouse.  

11.  In her self-authored statement, dated 4 June 2008, the applicant states that:

   a.  upon the FSM’s retirement, “she” elected to have the SBP since she met the 20-20-20 rule and thus, the SBP was a benefit of hers.  She further adds that she was separated from the FSM in 1999 and was divorced in 2001;
   
   b.  she called a toll-free number at the time and was advised to mail her divorce papers, which she did.  She followed up with a phone call and was assured that everything was taken care of and that there was no further action required of her.  She also provided her Rockford, Michigan, address.  She further called the toll-free number in 2006 and was again told that her deemed election was on file and everything was in place;
   
   c.  upon the FSM’s death, she was informed by the Fort Bragg, North Carolina, casualty assistance office, that she was listed as the “current spouse” and that according to their records, two letters were sent to a locked mail box that she did not have access to.  She was also informed that Fort Bragg officials did not have her divorce papers although she had sent her divorce papers years before;
   
   d.  she is very distressed at the turn of events.  The FSM and she agreed when they were divorced that she would receive the SBP annuity in the event of his death.  It is stated in their divorce decree.  Additionally, she had been paying for half of the SBP premiums in the form of a deduction from the money the FSM sent her; and
   
   e.  she has been ill for 22 years and has been collecting social security disability since 1996 as her only source of income.  She is currently completely disabled and is unclear of what her financial future looks like.  She concludes that she wants and needs the SBP; she never changed her mind about the SBP; and she and the FSM agreed that she would get the benefit.
   
12.  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.

13.  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.

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


15.  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.

16.  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.

17.  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 coverage.  Two weeks before his retirement, the FSM and the applicant separated on 14 April 1999.  Their Equitable Distribution Judgment and Order and their subsequent Judgment of Absolute Divorce, dated 14 March 2001, required 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.  The FSM did not make a former spouse election within one year of the divorce as required by law.  The applicant’s attempt to make a deemed election occurred more than one year after the divorce and was therefore not timely.

3.  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. 


4.  The ABCMR may not correct the FSM’s records to effectively award the applicant an SBP annuity, for so doing would deprive the FSM’s widow of a property interest without the due process of law.  The ABCMR can, however, reconsider the applicant’s request if she obtains a court order, in a law suit, that includes the FSM’s widow as a party that declares the applicant the proper recipient of the SBP annuity with greater rights than the widow.  

5.  In the alternative, the ABCMR would consider a reconsideration request if accompanied by a signed, notarized declaration from the FSM’s widow renouncing any claim interest in the SBP annuity.  However, being that the FSM’s widow has already applied for the annuity, this later option appears to be unlikely.

6.  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

__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 for correction of the records of the individual concerned.




      _______  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)                                         AR20080010426



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ABCMR Record of Proceedings (cont)                                         AR20080010426



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