IN THE CASE OF:	  

		BOARD DATE:	      28 APRIL 2009

		DOCKET NUMBER:  AR20080018659


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, in effect, the records of her deceased ex-husband, a retired former service member (FSM), be corrected to show that he timely filed a request with the Defense Finance and Accounting Service (DFAS) to change his Survivor Benefit Plan (SBP) coverage from spouse to former spouse in accordance with the Final Judgment of Dissolution of Marriage granted by the Circuit Court of the Seventeenth Judicial Circuit for Broward County, Florida, and as stipulated in the Separation and Property Settlement Agreement attached thereto.

2.  The applicant states, in effect, she and the FSM married on 11 September 1955 and divorced on 23 May 2000.  The property settlement agreement provided, "... [FSM] shall maintain the Survivor Benefit Plan … with the [applicant] as the designated ‘survivor’ for all purposes.  The [FSM] shall timely pay any and all costs necessary to maintain the Survivor Benefit Plan and shall provide the [applicant] with proof of the foregoing on the anniversary date of this agreement."  She adds she and the FSM notified DFAS by letter, dated 7 June 2004, of their divorce and of the change from spouse coverage to former spouse coverage.  The FSM continued to pay SBP premiums, but when he died, the DFAS stated they had no record of the divorce or the change in coverage.

3.  The applicant provides:

	a.  the Final Judgment of Dissolution of Marriage between the applicant (V______ A. L_____) and the FSM;

	b.  the Separation and Property Settlement Agreement;

	c.  the FSM’s January 2004 Retiree Account Statement;

	d.  the FSM’s Certificate of Death showing he died on 28 June 2008 and listing the “informant,” N___ L_____, as his wife; and

	e.  a copy of the 7 June 2004 letter to DFAS, with confirmation receipt.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 March 1932.  He was a U.S. Army Reserve (USAR) Soldier.  On 24 July 1979, he received notification of his eligibility for retired pay at age 60 (20-year letter).  At 47 years of age on 1 September 1979, he transferred to the USAR Control Group (Retired Reserve) with more than          21 years of creditable service for retired pay purposes.  During this time period, the FSM apparently elected Reserve Component SBP (RCSBP) Option C coverage for spouse only; however, documentation is not available for Board review.

2.  On 18 December 1991, the FSM made application for retired pay.  His DA Form 4240 (Data for Payment of Retired Army Personnel) contained no entries in Parts V (SBP Election) and Part VII (SBP Certificates).  Effective 1 April 1992, the FSM began receiving retired pay.  SBP premiums were withheld from his retired pay for “SBP spouse only cost” and “RCSBP cost.”

3.  On 23 May 2000, the applicant and the FSM were divorced.  The Separation and Property Settlement Agreement to the Final Judgment of Dissolution of Marriage ordered the FSM to maintain the applicant as the beneficiary of his SBP election; that is, he was ordered to change his SBP coverage from spouse only to former spouse.

4.  On 7 June 2004, the applicant filed a request with DFAS for, in effect, a deemed election changing SBP coverage from spouse only to former spouse.  The request was received by DFAS on 10 June 2004 and the applicant believed the coverage change had been made. 

5.  The FSM died on 28 June 2008.

6.  On 20 March 2009, DFAS informed the Board analyst that no one is currently receiving the SBP annuity.

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.  

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a way for those who had qualified for Reserve retirement, but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  In effect, it offers survivor protection during “gray area” service (between the time a member qualifies for retired pay and actually receives retired pay at age 60).  It provides, in effect, that military members may elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The election made by the member is irrevocable (unless an open season was announced).  

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

10.  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 SBP election.

11.  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 applicant contends she is entitled to receive RCSBP benefits based on the death of her ex-husband, a FSM, as per their Final Judgment of Dissolution 
of Marriage granted by the Circuit Court of the Seventeenth Judicial Circuit for Broward County, Florida, and as stipulated in the Separation and Property Settlement Agreement attached thereto.

2.  When the FSM received his 20-year letter, he apparently elected to participate in the RCSBP for Option C, spouse only coverage.  Proof of this is borne out by the following:

   a.  the FSM’s DA Form 4240 contained no entries related to SBP coverage, which would have been correct had he elected RCSBP when he received his   20-year letter (essentially, the decision had already been made); and

	b.  the FSM’s DFAS Retiree Account Statement reflected SBP spouse cost and RCSBP cost premium deductions.

3.  The FSM and the applicant divorced in May 2000.  The Separation and Property Settlement Agreement stated the FSM would maintain the applicant as his SBP beneficiary.  However, it appears that neither the FSM nor the applicant took the steps required to change his SBP coverage from spouse to former spouse within the one-year time period required by law.

4.  Evidence shows the applicant did, in June 2004, notify the DFAS of her divorce and of the SBP provisions of the property settlement agreement.  In 
effect, she sought, 3 years after the fact, to file a deemed election.  Apparently her request was not honored by DFAS because it was not timely filed within 1 year of the date of divorce.  Coordination with the DFAS revealed:

	a.  the applicant’s request for a deemed election in June 2004 was outside the 1 year window of opportunity and, therefore, was rejected; and

	b.  there is no SBP annuity being paid on the FSM’s account.

5.  Additionally, from the available evidence, it appears the FSM remarried sometime after his March 2000 divorce from the applicant, V______.  His Certificate of Death lists his wife at the time of death as N____.  This poses a legal issue because 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 the eligible SBP beneficiary.  A change in SBP category to former spouse would have had to have been registered with the DFAS within 1 year of the divorce in order to continue the applicant’s property interest in the FSM’s SBP.  The failure to do so, coupled with the FSM’s remarriage, established a new property interest on behalf of his widow, N____, which supersedes the applicant’s property interest; thus, N____ would be the lawful beneficiary of the SBP annuity should she apply for it.

6.  In order for the ABCMR to render a favorable decision on the applicant’s request, she would have to provide evidence that the FSM and N____ had been married for less than 1 year at the time the FSM died.  If the FSM and N____ were married for more than 1 year, the applicant would have to provide a signed, notarized statement from N____ relinquishing any claim to the FSM’s SBP annuity in favor of her [applicant] or join N____ in a lawsuit seeking to divest Ne____ of her SBP interest.

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)                                         AR20080018659



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ABCMR Record of Proceedings (cont)                                         AR20080018659



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