IN THE CASE OF:	  

		BOARD DATE:	      20 AUGUST 2009

		DOCKET NUMBER:  AR20090002680 


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 military records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states, in effect, that they were married from 1968 until 1992 which represents his entire military service.  She points out that their divorce decree states that she would be the irrevocable beneficiary of any SBP entitlements.   

3.  The applicant provides a copy of their divorce decree; a marriage certificate; a marriage license; a DFAS-IN Form 20-261 (Request for Information and/or Reply to Correspondence about Deceased Retirees), dated 9 December 1991; and a copy of their separation and property settlement agreement in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM entered active duty on 5 June 1968.  He and the applicant married on 16 June 1968.  

3.  The FSM’s DA Form 4240 (Data for Payment of Retired Army Personel), dated 25 July 1988, shows he enrolled in the SBP for spouse and dependent children, full base amount.

4.  The FSM retired in the rank of colonel on 31 July 1988 after completing over 20 years of active service.

5.  The FSM and the applicant divorced on 10 December 1992.  The divorce decree states that the FSM shall name the applicant as the irrevocable beneficiary of any Survivor Benefit entitlements existing by reason of his military service.

6.  The FSM remarried on 1 January 1995.

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.  Elections are made by category, not by name. 

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

9.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

10.  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.

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’s contentions were noted.  However, SBP elections are made by category, not by name.  As long as she was the FSM’s wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

2.  There is no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory one-year time limit.  

3.  There is evidence to show the FSM remarried on 1 January 1995.  At the one-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.     

4.  The ABCMR may not act to terminate her rights in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s spouse of a property interest without due process of law.  The ABCMR would only be empowered to correct the FSM’s records to grant the applicant a SBP annuity under one of two circumstances:

(a) The FSM’s spouse executes a signed notarized affidavit relinquishing her rights in the SBP annuity in favor of the applicant.  

(b) The applicant obtains an order from a State Court of competent jurisdiction, in an action joining the FSM’s spouse as a party, declaring that the applicant is the rightful beneficiary of the FSM’s SBP annuity.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s spouse or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  _____XX___  ____XX____  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)                                         AR20090002680





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ABCMR Record of Proceedings (cont)                                         AR20090002680



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