IN THE CASE OF:	  

		BOARD DATE:	        11 DECEMBER 2008

		DOCKET NUMBER:  AR20080011166 


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, the former spouse of a deceased former service member (FSM), requests reconsideration of her request to have the FSM's military records corrected to show that he elected former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that she disagrees with the previous decision by the Army Board for Correction of Military Records (ABCMR), and that she has obtained a "clarification order" to her divorce decree with the FSM that has been signed and notarized by the Fort McPherson, Georgia Staff Judge Advocate office which clarifies all of her entitlements as a former spouse of 20 years.  She also states, in effect, that she served as the FSM's wife for 20 consecutive years, and proudly stood beside him in every way.  She further states, in pertinent part, that the FSM told her that he stopped his SBP in June 2006.  She thought he still carried it because the FSM told her he did.  Additionally, she states that she does not know what happened to the DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) that the FSM signed trying to get her SBP entitlement restored.  However, in June 2006 she faxed this form to the records section in St. Louis, Missouri, and she gave the FSM the fax cover sheet confirming that it was received.  She also states that this form should be a part of the FSM's military records, but no one will acknowledge receiving it.  Further, she states that this form was faxed during an SBP open season, and that the FSM called the retirement branch to see what he needed to do to have her entitlement to SBP reinstated.  She also states, in effect, that she and the FSM even saw an attorney to get their divorce decree amended, but the attorney sat on it until he declined to take action on amending their divorce decree and gave her back the paperwork and informed her that he did not understand military law.  She continued by stating that she will pay any money to reinstate her entitlement to an SBP annuity.  Further, she states that her daughter and another person who are the executors of the FSM's will are witnesses to the FSM trying to get the SBP reinstated.  Additionally, she states that she received a Certificate of Eligibility from the retirement branch and that she would attach a copy.  However, she did not provide a copy of this document with her application.

3.  The applicant provides a two-page self-authored letter, dated 17 June 2008; an undated and unsigned self-authored letter; a "clarification order," dated 
20 May 2008; a three-page marital settlement signed by the applicant and the FSM, dated 24 July 1995; a letter, dated 6 February 2008, from the ABCMR; and a portion of the previous ABCMR proceedings in support of this 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 ABCMR in Docket Number AR20070013048, on 31 January 2008.

2.  The FSM and the applicant married on 22April 1967.  He retired on 31 August 1988.  He had elected to participate in the SBP for spouse only coverage.

3.  The FSM and the applicant divorced on 20 November 1995.  The property settlement agreement was silent regarding the SBP.

4.  The FSM died on 30 November 2006.

5.  The applicant provided a notarized "clarification order," dated 20 May 2008, which essentially stated that the applicant's entitlements as a former spouse were not spelled out in the final divorce decree between her and the FSM on 
20 November 1995.  This document also essentially stated that she is to be provided a military dependent identification card, medical benefits, SBP, exchange privileges, and an apportionment of veteran's benefits by the FSM.  This document further stated that the aforementioned entitlements are to be provided at no cost to the applicant, and that this "clarification order" was intended to clarify the 50 percent of the FSM's military retirement benefits awarded in the final divorce decree between the applicant and the FSM.  It should be noted that this "clarification order" was not issued by a civil court, and was actually signed by the applicant.


3.  Public Law 92-425, enacted 21 September 1972, 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. Elections are made by category, not by name. 

4.  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.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

5.  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.

6.  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.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant, the former spouse of a deceased FSM, contends that her request to have the FSM's military records corrected to show that he elected former spouse SBP coverage should be reconsidered.

2.  The "clarification order" provided by the applicant was carefully considered, but not found to have any merit or legal effect in this case.  This document was signed by the applicant, not by any court.  Additionally, even if this document was issued by a court, this document was not created until after the FSM died, so he could not be a party to any action, nor could he have acted on it.  

3.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce. Neither party did so, and their divorce decree was silent regarding any requirement that the FSM continue SBP coverage for the applicant as a former spouse.  Additionally, the only party represented by an attorney at the time of their marital settlement was the applicant, whose attorney should have ensured that their marital settlement properly addressed SBP, if such was intended.  

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.  Regrettably, in view of the foregoing, there is no basis for granting relief to the applicant in this case.

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 AR20070013048, dated 31 January 2008.




      _______ _  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)                                         AR20080011166



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ABCMR Record of Proceedings (cont)                                         AR20080011166



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