IN THE CASE OF:	  

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20080018954 


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, as the former spouse of a deceased former service member (FSM), requests reconsideration of her earlier request that she be entitled to his Survivor Benefit Plan (SBP) annuity payment.  

2.  The applicant states that the Identification Card (ID) section granted her an ID card back after her divorce from the FSM was determined invalid.  

3.  The applicant provides a copy of her ID and Privilege Card; her DD Form 1172 (Application for Uniformed Services Identification Card and DEERS Enrollment); a court order from the Commonwealth of Kentucky, Hardin Circuit Court, Family Court Division, dated 15 May 2008; two memoranda from the Chief, Administrative Law Division, dated 12 June 2007 and 6 September 2007; and a copy of the previous ABCMR Record of Proceedings, dated 9 October 2008, in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009468 on 9 October 2008.



2.  The applicant has provided new documents as listed in paragraph 3, above, that will be considered by the Board.  

3.  The evidence of record shows the applicant, whose first name is K___, and the FSM were married on 1 September 1954.

4.  The FSM married E_____ on 1 February 1966.

5.  The FSM retired on 30 April 1971.  The FSM's official record contains a copy of an AGPZ Form 977 (Data for Retired Pay); however, block 30 (Retired Servicemen's Family Protection Plan (RSFPP)) indicates that no DA Form 1041 was on file.  As such, it appears that he did not make an election under the RSFPP.

6.  The FSM obtained a divorce from his first wife, the applicant, on 6 February 1970, in Mexico.  This divorce decree indicates that the applicant and FSM mutually agreed that she would keep the trailer, that she would receive $150.00 per month in the form of child support for their 3 children, and that they had been separated for 6 years.

7.  The FSM died on 25 July 1976 at the Veterans Administration Hospital, Grand Isle, Nebraska.  On the Notification to U.S. Army Administration Center of Death of Retired Member form, the notification of death was made by E____, his widow.

8.  Per Defense Finance and Accounting Service (DFAS), Cleveland Center, E____ is receiving the FSM’s SBP annuity in accordance with the DD Form 1883 on record electing spousal coverage.

9.  The applicant was issued a U.S. Uniformed Services, ID and Privilege Card and the FSM is indicated as the sponsor.  

10.  The applicant provided a memorandum, subject: Determination of Validity of Divorce (K___ S___), dated 12 June 2007, from the Chief, Administrative Law Division as new evidence.  The memorandum indicated that the Defense Finance and Accounting Service (DFAS) service representative was responsible for making the final determination regarding the validity of questionable marriages or relationships and it was recommended that the request be forwarded to the DFAS, Indianapolis, IN office.  It was stated that this legal review was advisory only and did not constitute an official determination.  This memorandum referenced Department of Defense (DoD) Financial 


Management Regulation, Volume 7A, Chapter 26, subparagraph 260403.E which provides guidance with regard to foreign nation divorces.  The memorandum also indicated that domicile is the essential component of divorce, and unless a party to a lawsuit is domiciled in the state or country where the action is filed, there is no jurisdiction.  In conclusion, the memorandum pointed out that, since both Mr. S____ and Mrs. S___ were apparently never domiciled in Mexico, the divorce was almost certainly invalid.  

11.  The applicant also provided a memorandum, subject: Determination of Validity of Divorce (K___ S___), dated 6 September 2007, from the Chief, Administrative Law Division as new evidence.  The memorandum indicated the applicant was currently receiving Social Security benefits based on her marriage to the FSM and that the marriage to the second Mrs. S___ occurred prior to the Mexican divorce dated 13 February 1970.  It appeared that the second marriage was a nullity.  The memorandum referenced Army Regulation 600-8-14, paragraph 2.4.4.1.2.  Absent some proof of a prior U.S. judicial determination of the divorce's validity by the second Mrs. S___ or by Mrs. K___ S___, there appeared to be inadequate regulatory basis for beginning or ending either party's ID card entitlement.  It was recommended that Mrs. K___ S___ seek a judicial determination regarding the validity of the divorce.  

12.  As new evidence, the applicant provided a court order from the  Commonwealth of Kentucky, Hardin Circuit Court, Family Court Division, dated 15 May 2008.  It was ordered that the motion to dismiss the case before the court for lack of subject matter and personal jurisdiction be granted.  The case was dismissed with prejudice.  The initial case docket is not available.  

13.  Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act).  It covered only persons dependent on the member at the time of his retirement.  Annuity was 1/2, 1/4, or 1/8 of retired pay.  

14.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  

15.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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.  It declared an Open Season for those members who retired prior to enactment of the law.

16.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and the applicant married on 1 September 1954.  The FSM retired on 30 April 1971.  He married E____ on 1 February 1966.  He obtained a divorce from the applicant in Mexico on 6 February 1970.  The FSM died on 25 July 1976.  At the time of his death, E____, was shown as his widow, and she is currently receiving his SBP annuity payment.

2.  As stated in the previous case, the determination on whether the FSM's divorce is legal and/or valid can only be made by a court of law, and not by the ABCMR.  The applicant would need to challenge the legality of the divorce in a court of law. Such a suit would need to join the FSM's widow, E ____, as a party.

3.  The new evidence provided by the applicant was carefully reviewed.  However,  at this time, the lawful beneficiary of the FSM's SBP is considered to be E____, his spouse at the time of his death.  The ABCMR cannot take away her right to the SBP without her irrevocable consent or due process of law.  

4.  Therefore, as a matter of law, the ABCMR must again deny the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number  AR20080009468, dated 9 October 2008.




      _______ _   _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)                                         AR20080018954





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018954



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1