IN THE CASE OF:	  

		BOARD DATE:	        26 March 2009

		DOCKET NUMBER:  AR20080015527 


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 Survivor Benefit Plan (SBP) election of her 
ex-spouse, a former service member (FSM), be corrected to show he changed his election to former spouse coverage.

2.  The applicant states, in effect, that she is listed under the SBP as spouse coverage.  She continues that she and the FSM divorced in March 2006 and that she had very little knowledge about military rules and regulations at that time.  She found it difficult to know the right questions to ask to get the right answers she needed.  

3.  The applicant states that she made calls, filled out forms, and mailed documents in 2006, 2007, and in 2008 to many different offices about being divorced.  She was told that she was still under SBP and did not need to do anything more.  She feels that she was misinformed about the SBP process because she is still listed as spouse instead of former spouse.

4.  The applicant provides a North Carolina Davidson County Judgment of Divorce, dated 20 March 2006; a State of Georgia Marriage License, dated 
10 August 1982; a 2-page Former Spouse's Military Benefits Chart; a Retiree Account Statement from the Defense Finance Accounting Service (DFAS), dated 
2 January 2003; and a memorandum from DFAS, dated 8 July 1998.




CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 15 June 1978.  He and the applicant married on 10 August 1982.  

2.  On 30 June 1998, the FSM retired in the rank of staff sergeant after completing over 20 years of active service.  He elected to participate in the SBP for spouse coverage.

3.  On 20 March 2006, the FSM and the applicant divorced.  He apparently remarried on 16 December 2006.

4.  The applicant provides a copy of the divorce decree, which states, in pertinent part, that “The Husband shall maintain and pay any premiums on his current Survivor Benefit Plan which is provided by the U.S. Army and names the wife as the beneficiary.  The Husband shall not remove the Wife as beneficiary of this plan.  Each party shall have equal access to any and all information pertaining to said Survivor Benefit Plan and each shall execute any and all necessary documents to effectuate the terms of this provision.”

5.  There is no evidence that shows the FSM submitted a written request to change his election to former spouse coverage, or that the applicant submitted a written request for a deemed election to DFAS to change the SBP coverage from spouse to former spouse coverage within one year of the divorce.

6.  On 9 February 2009, DFAS informed the Board analyst that the FSM's records at DFAS show that he continues to pay SBP premiums with coverage for spouse only.

7.  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.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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



11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA [Uniformed Services Former Spouse Protection Act] relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 after the date of the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 30 June 1998 and elected SBP spouse coverage.  He was married to the applicant at that time.

2.  The FSM divorced the applicant on 20 March 2006.  The divorce decree addressed the SBP.  It stated, “The Husband shall maintain and pay any premiums on his current Survivor Benefit Plan which is provided by the U.S. Army and names the wife as the beneficiary.  The Husband shall not remove the Wife as beneficiary of this plan.  Each party shall have equal access to any and all information pertaining to said Survivor Benefit Plan and each shall execute any and all necessary documents to effectuate the terms of this provision.”  

3.  The applicant was, in effect, awarded former spouse SBP coverage in the divorce decree.  She therefore had until 19 March 2007 to make a request for a deemed election of the SBP.  There is no evidence of record that shows the applicant submitted a written request for a deemed election for former spouse coverage, and it appears the FSM did not change his election to former spouse coverage.

4.  The FSM's records at DFAS indicate that he continues to pay SBP premiums with spouse coverage.  Further it appears the FSM remarried on 16 December 2006 which means SBP coverage vested in his current spouse one year after their marriage.  

5.  The applicant is advised that her only recourse is to take the FSM back to court, joining his current spouse as a party to the action; or to obtain a notarized statement from the FSM's current spouse voluntarily relinquishing her interest in SBP in her [the applicant's] favor.

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)                                         AR20080015527



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ABCMR Record of Proceedings (cont)                                         AR20080015527



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