IN THE CASE OF:	  

		BOARD DATE:	 7 May 2009

		DOCKET NUMBER:  AR20080018298 


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 former service member (FSM) requests, in effect, that the records of her deceased former spouse be corrected to show she submitted a "deemed election" in a timely manner establishing herself as beneficiary for benefits under the Survivor Benefit Plan (SBP) as a former spouse.

2.  The applicant remained silent to allow her attorney to represent her in the presentation of her case.

3.  In support of her request, the applicant submits a copy of the FSM's certificate of death issued by the State of Alabama; a copy of the marriage license which was issued by the State of Colorado on 15 October 1974 and a copy of their marriage certificate dated 18 October 1974; a copy of the applicant's and the FSM's final judgment of divorce which was filed in the Circuit Court of Coffee County, Alabama, on 11 March 1992; a copy of the FSM's Retiree Account Statement with an effective date 6 December 2005 and new pay due date as of 3 January 2006; a copy of the applicant's certified birth record showing her date of birth as 13 September 1934; and a copy of a letter addressed to her Member of Congress from the Defense Finance and Accounting Service, Kansas City, Missouri, dated 8 August 2007.

4.  Also included in this packet is correspondence from the FSM's widow's attorney requesting an opportunity to submit matters for consideration in behalf of his firm's client.  The letter indicates a copy has been furnished to applicant's counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the FSM's records be corrected to show a "deemed election" was filed naming the applicant, their client, as the beneficiary for the FSM's SBP benefits.

2.  Counsel states, in effect, the FSM was required under the terms of the divorce to maintain his SBP and to make their client the beneficiary thereof.  The FSM maintained his SBP and made steady payments thereon until his death.

3.  Counsel also states, in effect, the FSM remarried in 1994 and even though he had remarried after his divorce their client was always led to believe that the FSM had taken the appropriate steps to maintain her as the beneficiary for his SBP benefits.  Subsequent to his remarriage, the FSM supplied the applicant with information that she and not his current spouse was the beneficiary of his SBP.  The Retiree Account Statement included in the applicant's request is the one the FSM supplied to their client.  In the SBP coverage area of the statement, it shows that the FSM had elected spouse only coverage and that the designated beneficiary spouse's date of birth is 13 September 1934.  This, counsel states, is their client's date of birth and not the FSM's widow's date of birth.

4.  Counsel continues, in effect, the applicant did not file a notice of deemed election with the Defense Finance and Accounting Service.  After the FSM's death, the FSM's widow made claim for SBP benefits and has been receiving them from the Defense Finance and Accounting Service.  Counsel summarizes by requesting, in effect, that the FSM's records be corrected to show a "deemed election" was filed naming the applicant, their client, as the beneficiary for the FSM's SBP benefits.

5.  Counsel provides those documents that were identified above.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the FSM was born on 26 December 1930.  He served in an enlisted status from 21 February 1949 until 22 April 1954 when he was released from active duty and transferred to the Reserve.  The FSM attended medical school and was commissioned in the Army Medical Corps on 7 July 1963.  The FSM and the applicant married on 18 October 1974.  He served on active duty until 30 June 1984 when he was separated in the rank of colonel for the purpose of retirement.  At that time, he elected to participate in the SBP for spouse coverage.

2.  The FSM and the applicant divorced on 19 January 1990.  The FSM and the applicant remarried in April 1991 and were again divorced on 11 March 1992.  In the Final Judgment of Divorce (in item 4) it specifically states that the "Husband shall maintain the Survivor's Benefit Program with his military retirement and shall make Wife the beneficiary thereunder."

3.  There is no evidence that after the applicant's and the FSM's second divorce he took any action to change the beneficiary under the SBP from "spouse" to "former spouse."

4.  The FSM's Retiree Account Statement shows deductions were being made for SBP coverage from his retired pay.  The Retiree Account Statement shows his SBP coverage was for "Spouse Only."  The date of birth of his spouse as listed on the Retiree Account Statement is 13 September 1934.

5.  The applicant submitted a Verification of Birth Record prepared by the Dale County Health Unit, Ozark, Alabama, on herself.  This Verification of Birth Record shows her date of birth to be 13 September 1934.

6.  The FSM died on 8 July 2007.  The death certificate shows his marital status as married.  The FSM's surviving spouse's name on the death certificate is listed as, K____ A____ R____.  The surviving spouse's date of birth is unknown.

7.  The applicant submitted a request for assistance to her Member of Congress about what appears to have been a denial of payment of an SBP annuity to her.  The Member of Congress made an inquiry to the Defense Finance and Accounting Service.  On 8 August 2007, the Director, Defense Finance and Accounting - Cleveland, responded to the Member of Congress' inquiry.  In this reply, the applicant's Member of Congress was informed the FSM originally elected spouse SBP coverage.  Upon his and the applicant's divorce, if former spouse coverage would have been elected by either party, the coverage would have been changed to former spouse coverage.  The FSM had the option to elect former spouse coverage for the applicant but did not.  Their divorce decree alone did not constitute a valid deemed election.  The Defense Finance and Accounting Service did not have a deemed election from the applicant on file.  Since former spouse coverage was not elected, the applicant was not entitled to an SBP annuity.

8.  In this same reply, the applicant was apprised of the contents of Public Law 98-525 which was enacted on 19 October 1984.  This law amended the SBP by giving a former spouse of a retiree an option to request that a former spouse election be deemed to have been made by the retiree.  If both the retiree and the former spouse signed an agreement to continue SBP with former spouse coverage, the retiree could do so if he or she provided a qualified court order that incorporated, ratified, or approved the agreement.  If the retiree failed to elect coverage, the former spouse could request a deemed election for former spouse coverage if the conditions mentioned above were met.  The request for a deemed former spouse election had to be received within 1 year from the divorce.  The divorce decree alone could not be constituted a deemed election.

9.  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 (emphasis added), and are irrevocable except as provided for by law.

10.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.

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

12.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to provide coverage.

13.  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 member was participating in the SBP or was still on active duty and had not yet made an election.

14.  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 of the date of the court order or filing involved.



DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, an 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.

2.  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 to submit a deemed former spouse SBP coverage election within 1 year of divorce.

3.  Upon the FSM's and the applicant's divorce, if former spouse coverage had been requested by the FSM, the coverage would have been changed from spouse only to former spouse coverage.  The FSM had the option to elect former spouse coverage for the applicant but did not.  Their divorce decree alone did not constitute a valid deemed election.

4.  The evidence of record indicates that the FSM never notified Defense Finance and Accounting Service officials to change his SBP election from spouse to former spouse coverage within 1 year of the divorce.

5.  Applicant's counsel stated that the applicant did not submit a deemed election and the evidence shows that the Defense Finance and Accounting Service did not have a deemed election from the applicant on file.

6.  Even though the applicant's date of birth appears on the Retiree Account Statement that was submitted by the applicant, the FSM's widow is the legal annuitant because SBP annuity elections are made by category and not by name.  The Retiree Account Statement clearly shows SBP coverage type was for spouse only.  This Board has no authority to divest the FSM's widow of her SBP interest.

7.  Former spouse SSBP coverage was not elected and the applicant did not submit a request for a deemed election.  Since the FSM's widow has not been a party to this request and has not given her consent to give up her legal right to the SBP annuity, the applicant is not entitled to a SBP annuity and there is no basis for granting her request.



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)                                         AR20080018298



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018298



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1