IN THE CASE OF:	  

		BOARD DATE:	        19 March 2009

		DOCKET NUMBER:  AR20080015647 


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 the records of her deceased ex-husband, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for former spouse at the full base pay rate.  In effect, she requests a deemed election of former spouse coverage.

2.  The applicant states, in effect, she and the FSM, who was already retired from the Army, married in December 1985 and had two children together.  They divorced in November 1988.  In March 1990, they remarried and the FSM elected SBP coverage for spouse and children.  In October 1995, they divorced again and the FSM changed his SBP coverage to children only.

3.  The applicant adds, in effect, it was her belief that the original SBP coverage would continue after her 1995 divorce.  She states that no one told her she had to make a request for former spouse coverage within 1 year of the date of her divorce.  She states that now her two children are 22 years old and no longer receiving SBP payments.  She knows the FSM wanted to provide for her because she is currently receiving an annuity from the FSM’s pension with the Alameda-Contra Costa Transit Authority.

4.  The applicant provides:

	a.  three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 30 June 1957, 16 May 1963, and 16 May 1969;

	b.  a DD Form 214 (Report of Separation from Active Duty) for the period ending 31 October 1974;

	c.  a State of Nevada Marriage Certificate, dated 28 December 1985;

	d.  two State of California Certificates of Live Birth, dated 16 July 1986;

	e.  a Superior Court of California, County of Alameda, Judgment of Divorce, dated 18 November 1988;

	f.  a County of Alameda, License and Certificate of Marriage, dated 16 March 
1990;

	g.  a DD Form 2618 (Survivor Benefit Plan (SBP) Open Enrollment Election), dated 1 March 1993;

	h.  a Superior Court of California, County of Alameda, Judgment of Divorce, dated 25 October 1995;

	i.  a Residential House Rental Agreement, dated 12 December 2005;

	j.  a memorandum from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, dated 4 April 2006;

	k.  an Alameda-Contra Costa Transit Authority Life Insurance Beneficiary Designation for Retired Employees, dated 5 May 2008;

	l.  two memoranda from DFAS, dated 8 August 2008;

	m.  a memorandum from the State of California, State and Consumer Services Agency, dated 12 August 2008;

	n.  a State of California Certificate of Death, dated 14 August 2008;

	o.  an obituary for the FSM, dated 15 August 2008;

	p.  a Statement of Funeral Goods and Services Selected, dated 15 August 
2008;

	q.  a Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), dated 21 August 2008;


	r.  a letter from Amalgamated Transit Union Local 192, dated 22 August 
2008;

	s.  two Retiree Account Statements from DFAS with dates ending 1 May 2006 and 2 September 2008;

	t.  an undated memorandum from Metropolitan Life Insurance Company;

	u.  three memoranda from the Alameda-Contra Costa Transit District; and

	v.  a copy of paper with the applicant and her daughters' U.S. Uniformed Services Identification Card, California Driver License along with the applicant’s Social Security Card, and a copy of her daughters' Berkley City College Student Identification Cards.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 30 June 1954.  On 31 October 1974 the FSM retired in the rank of staff sergeant after completing over 20 years of active service.

2.  The FSM and the applicant married on 28 December 1985.  On 1 July 1986, the FSM's daughters were born.  On 30 November 1988, the FSM and the applicant divorced.  The judgment of divorce states, in pertinent part, that "Pensions and Retirement Benefits.  The parties hereby stipulate and agree that respondent’s [FSM’s] military retirement benefits with the United States Army shall be confirmed as his sole separate property."

3.  The FSM and the applicant remarried on 11 March 1990.  During an open season on 1 March 1993, the FSM completed a DA Form 2618.  On this form, he elected "SPOUSE AND CHILD(REN)" SBP coverage, full base amount.

4.  On 27 July 1995, the FSM and the applicant divorced again.  The judgment of divorce states, in pertinent part, that "…the respondent [FSM] shall continue to maintain the existing survivor pension benefit plan with Alameda-Contra Costa Transit District, and the existing Survivor Benefit Plan with his military retirement, if any provisions apply for the benefit of the children."

5.  There is no evidence that shows the FSM submitted a written request to DFAS to change the SBP coverage from spouse and children to former spouse and children coverage within 1 year of the divorce.

6.  On 13 April 2006, the FSM completed a Designation of Beneficiary Form that shows he designated his two daughters as his beneficiaries of his retired pay upon his death.

7.  A DFAS Retiree Account Statement for the period ending 1 May 2006 indicates that the FSM elected "child(ren) only" SBP coverage, 55 percent annuity amount.  On 31 July 2008, the FSM's daughters reached 22 years of age which terminated the children-only SBP coverage.

8.  On 6 August 2008, the FSM died.

9.  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.

10.  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.

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

12.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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 1 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 1 year after the date of the decree of divorce, dissolution, or annulment.

DISCUSSION AND CONCLUSIONS:

1.  The FSM elected SBP coverage for spouse and children in March 1993 during an SBP open season.

2.  The applicant and the FSM divorced on 27 July 1995.  The divorce decree 
ordered the FSM to maintain the survivor benefit provisions of his civilian employment, "and the existing Survivor benefit plan with his military retirement, if any provisions apply for the benefit of the children [emphasis added]."

3.  The FSM’s records show DFAS changed his SBP withholding to reflect children-only costs.  The withholdings ceased when his daughters reached age 22 in July 2008.

4.  The FSM died on 6 August 2008.

5.  The applicant has not demonstrated entitlement to a former spouse SBP annuity.  The divorce decree clearly meant to provide an SBP annuity for the FSM’s minor children and DFAS changed the FSM’s SBP election to reflect that intent.  From on or about 1 August 1995 through July 2008, the DFAS deducted children-only SBP premiums from the FSM’s retired pay.  There was never a provision for former spouse coverage.

6.  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.  Since the divorce decree did not provide for former spouse SBP coverage, such a change in SBP coverage would have been a strictly voluntary action on the part of the FSM.  There is no evidence such a change was made.

7.  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.

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)                                         AR20080015647



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ABCMR Record of Proceedings (cont)                                         AR20080015647



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