IN THE CASE OF:	

		BOARD DATE:	 23 July 2009   

		DOCKET NUMBER:  AR20090002380 


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 reconsideration of her earlier request that the Survivor Benefit Plan (SBP) election of her deceased former spouse, a former service member (FSM), be corrected to show he changed his election from spouse to former spouse coverage.

2.  The applicant states that she has now obtained a copy of the Judgment of Divorce between the applicant and his second wife and there is no mention therein of his second wife being entitled to the SBP annuity.  She states that it has been 1 year and his second wife has not applied for the SBP annuity.  The applicant states that the agreement was between her and the FSM that she would receive the SBP annuity.

3.  The applicant provides a copy of the Judgment of Divorce between the FSM and his second wife.

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 AR20080010076, dated 7 August 2008.

2.  The applicant provided new evidence which will be considered by the Board.

3.  The FSM enlisted in the Regular Army on 8 January 1967, and he and the applicant married on 12 April 1985.  He remained on active duty through a series of reenlistments.  He was promoted through the ranks to master sergeant (E-8).

4.  On 29 December 1999, the FSM elected to participate in the SBP, spouse only coverage, at the reduced base amount of $500.00.

5.  After completing 24 years of total active service, the FSM was placed on the Retired List on 1 March 2000.

6.  On 10 September 2001, the FSM and the applicant were separated and in their Separation and Property Settlement Agreement, dated 27 September 2001, they both agreed that the FSM would pay the applicant one third of his disposable military retired pay.  

7.  The FSM and the applicant divorced on 12 October 2003; however, their Divorce Decree did not obligate him to change his SBP coverage from spouse to former spouse.  The FSM did not notify the Defense Finance and Accounting Service of his divorce from the applicant and he continued to pay SBP premiums for spouse only coverage.

8.  The FSM remarried on 28 May 2004 and the applicant now provides a copy of the Judgment of Divorce between the FSM and his second wife.  The Judgment of Divorce order, adjudged and decreed that there be a judgment of divorce rendered between the FSM and his second wife, forever dissolving the bonds of matrimony that previously existed between the two, effective 17 December 2007.  The Judgment of Divorce does not show whether there was a property settlement or the specific terms of the divorce between the FSM and his second wife.

9.  The FSM continued to pay his SBP premiums for spouse only coverage until he died on 9 February 2008.

10.  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.  

11.  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.  

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

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 SBP 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 to elect to provide an annuity to a former spouse.  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.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

15.  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 that based on the new evidence that she provided, the FSM’s records should be corrected to show he changed his election from spouse to former spouse coverage.

2.  The applicant’s contentions are not supported by the available evidence.  The Judgment of Divorce between the FSM and his second wife that the applicant submitted has been considered.  However, it is not sufficiently mitigating to warrant the requested relief.  The Judgment of Divorce does not show whether there was a property settlement or the specific terms of the divorce between the FSM and his second wife.  

3.  Additionally, the applicant’s contention that it was an agreement between her and the FSM that that she would receive the SBP annuity is not sufficient to change the FSM’s election form.  



4.  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.

5.  In view of the foregoing, there is no basis for granting 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 AR20080010076, dated 7 August 2008.




      _______ _   _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)                                         AR20090002380



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ABCMR Record of Proceedings (cont)                                         AR20090002380



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