IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013050


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 awarded a Survivor Benefit Plan (SBP) annuity based upon the death of her ex-husband, a former service member (FSM), on 16 January 2008.

2.  The applicant states the FSM “continued to pay into the SBP [for some 4 1/2 years] after the divorce.  He was not aware he had to change it to former spouse, nor did the lawyers.”  She adds the FSM paid into the SBP for 29 years.

3.  The applicant provides a copy of her marriage license showing marriage to the FSM, and a copy of the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM served in the Regular Army in the rank of Master Sergeant (MSG/E-8).  He was retired by reason of permanent physical disability on 20 September 1978 with 20 years and 6 days of active service.

2.  The applicant and the FSM were married on 19 November 1961.  She and the FSM were still married when he retired on 20 September 1978.  The FSM’s records contain DA Form 4240 (Data for Payment of Retired Army Personnel), dated 20 September 1978.  In Part IV (Survivor Benefit Plan Election), the FSM indicated in Item 15e “I decline coverage.”



3.  Records maintained by the Defense Finance and Accounting Service (DFAS) show that the FSM did not participate in the SBP upon his retirement in 1978.  However, during the 1981/1982 open season, he elected to participate in the SBP for spouse and child coverage.

4.  The FSM participated in the SBP from the 1981/1982 open season to his death on 16 January 2008.  The applicant provided no evidence relating to her divorce.  However, from her statement to the Board, it may be concluded that she and the FSM were still married when he elected to participate in the SBP during the 1981/1982 open season.  It may also be concluded that she and the FSM divorced around the July 2003 time frame [4 1/2 years prior to his death] and that the divorce decree made no provision for former spouse coverage.

5.  The FSM’s death certificate submitted by the applicant shows that at the time of his death, he was married to another woman, “D.”  The DFAS records show that an SBP annuity is currently being paid to “D,” the widow of the FSM.

6.  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.

7.  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.

8.  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.

9.  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.



10.  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 not to participate in the SBP for spouse coverage.  However, during the 1981/1982 open season, he elected SBP coverage for spouse [the applicant] and child. 

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.  Neither the applicant nor the FSM made a former spouse election within one year of the divorce as required by law.

3.  The FSM’s death certificate indicates that the FSM was remarried after he and the applicant divorced; therefore, SBP benefits shifted to the beneficiary category in effect at the FSM’s time of death, his widow, “D,” if they had been married for at least one year, not the applicant, his former spouse. 

4.  The ABCMR may not correct the FSM’s records to effectively award the applicant an SBP annuity, for doing so would deprive the FSM’s widow, “D,” 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 lawsuit, that includes the FSM’s widow as a party, and 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 interest in the SBP annuity.  However, since the FSM’s widow is already receiving the annuity, this latter 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.




      _______ _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)                                         AR20080013050



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ABCMR Record of Proceedings (cont)                                         AR20080013050



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