BOARD DATE: 16 July 2009
DOCKET NUMBER: AR20090002574
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, that the records of her ex-husband, a retired service member, be corrected to show she made a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of divorce.
2. The applicant states she was never aware of the 1 year requirement to submit a deemed election for SBP coverage.
3. The applicant provides, in support of her application, copies of her divorce decree and her name change.
CONSIDERATION OF EVIDENCE:
1. The applicant's ex-husband was released from active duty on 30 September 1991 and placed on the Retired List effective 1 October 1991. He had completed 26 years, 2 months, and 13 days of active service.
2. On 10 March 2006, the applicant and her ex-husband were divorced in Hays County, TX.
3. According to the divorce decree the applicant was to receive her ex-husband's death pension benefits under the SBP as defined in a Qualified Domestic Relations Order. A copy of this order is not available for review.
4. A telephone conversation between a member of the staff of the ABCMR and a staff member at DFAS revealed the retiree's initial SBP election in 1991 was for spouse and child coverage. DFAS shows the retiree's current SBP election, effective 2 June 2007, is for spouse only and lists a spouse other than the applicant.
5. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 or as part of a proceeding of divorce.
6. 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.
7. Title 10, U. S. Code, section 1448(a)(6) provides that a person with spouse coverage who remarries may elect not to provide coverage under the SBP for the persons spouse if such an election is made within one year after the persons remarriage. The persons spouse shall be notified of that election.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention of entitlement to former spouse coverage under the SBP was carefully considered. However, while the applicant's argument has logic and appears to be supported by the divorce decree she provides, it is not the overriding principle in this case. The clear intent of the governing law is to provide a former spouse an alternative means of gaining SBP coverage once an agreement is entered into and validated by a court if the service member involved fails to comply with the terms of the agreement.
2. The applicant failed to make a deemed election for former spouse coverage within 1 year of her divorce. Based on the information obtained from DFAS the retiree has remarried and his SBP election is shown as spouse only coverage. There is no evidence of the retiree having elected not to provide coverage under the SBP for his current spouse within 1 year of their marriage. Therefore, his current wife's entitlement became vested upon the first anniversary of their marriage.
3. The Board may not divest the service member's current spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the divorce proceedings of the applicant and the service member. That is, the Board cannot take the SBP from the service member's current spouse without violating her constitutional right to due process of law. Therefore, this court action would have to include the service members current wife as a party in order to protect her property interest and rights. If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to this Board for reconsideration. In the alternative, the Board may reconsider the applicants request if she obtains a notarized, sworn affidavit from the service member's current wife irrevocably renouncing her right to the SBP annuity. In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.
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) AR20090002574
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