IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090003111 


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, the former spouse of the deceased former service member (FSM), requests correction of the FSM's records to show that he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states that the court required the FSM to name his former spouse as his SBP beneficiary.  

3.  The applicant provides, in support of her application, copies of her Marriage Certificate, Voluntary Separation and Property Settlement Agreement, Judgment of Absolute Divorce and Domestic Relations Order, two Supplemental Reports of Master and Examiner, and the FSM's Certificate of Death.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant receive SBP benefits as directed by the court.

2.  Counsel states that the loss of the SBP benefit has caused a financial hardship on the applicant.

3.  Counsel provides no additional documentation in support of the application.




CONSIDERATION OF EVIDENCE:

1.  On 18 December 1959, the FSM married the applicant in Bad Hersfeld, in the Federal Republic of Germany.

2.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 8 February 1978, shows that the FSM elected SBP coverage for spouse only at a reduced amount.

3.  On 31 March 1978, the FSM was retired in the rank of captain, pay grade O-3.  He had completed 20 years and 8 days of creditable active duty service.

4.  On 31 May 2001, the court rendered a judgment of absolute divorce, wherein the judge ordered, in part, the FSM to reinstate the applicant as the sole beneficiary of his SBP.

5.  The Report of Master and Examiner provides that the FSM had testified in court that the applicant was the sole beneficiary of his SBP and that he would continue the applicant as the sole beneficiary of his SBP at the same level.

6.  The former spouse never made a deemed election for SBP benefits.

7.  On 31 January 2003, the FSM married another woman.

8.  The FSM died on 8 March 2008.  The certificate of death shows that he was still married to his second wife at the time of his death.  There is no evidence of record showing that the FSM made any changes to his SBP election after his second marriage.

9.  On 2 December 2008, the applicant's counsel wrote that upon the death of the FSM, the Defense Finance and Accounting Service (DFAS) stopped all benefit payments to the applicant because the FSM had not changed his SBP election from spouse to former spouse.  

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.  

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

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)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 the FSM's military records should be corrected to show that he elected SBP coverage for his former spouse. 

2.  The available evidence clearly shows that the FSM had agreed to continue the SBP coverage that he had already elected.  His court testimony seems to indicate that he may have not known or understood the requirement to change his election from spouse to former spouse coverage.  Additionally, his testimony may have caused the applicant to believe that there was no further action needed.
 
3.  The judgment of absolute divorce required the FSM to provide the applicant with an SBP benefit at the same level.  However, there is no available evidence showing that the FSM changed his election from spouse to former spouse coverage.  

4.  The FSM had one year from the date of divorce to change his SBP election to former spouse coverage.  He failed to do so and the applicant failed to make a request for a deemed election of the SBP within one year of the divorce as required by law.

5.  The FSM’s court testimony indicates that he intended to provide SBP to the applicant, as required by the court.  However, because the FSM never changed his election from spouse to former spouse coverage, his second wife acquired the entitlement to the SBP benefit.  Counsel's 2 December 2008 letter implies that the FSM's widow is receiving the annuity.  This Board may not change that outcome as it would involve an improper taking of a property interest without due process of law.

6.  Under the present conditions, there is no effective relief for the applicant.  If the FSM's widow was willing to relinquish her entitlement, the SBP entitlement could be restored to the applicant, as the FSM apparently intended.  In the alternative, the applicant could attempt to secure her interest in the SBP through a court order, in a suit joining the widow as a party.

7.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20090003111



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ABCMR Record of Proceedings (cont)                                         AR20090003111



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