IN THE CASE OF:	

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090004478 


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 a former service member (FSM), requests, in effect, that the FSM's records be corrected to show she submitted a "deemed election" in a timely manner establishing herself as the beneficiary for benefits under the Survivor Benefit Plan (SBP) as a former spouse.

2.  The applicant stated, in effect, that she did not realize she had to deem herself as beneficiary for her former husband's SBP.  Because of a lack of knowledge, she thought the lawyers had everything in place.

3.  In support of her request, the applicant submits a copy of the FSM's Death Certification issued by the State of South Carolina; a copy of their License and Certificate for Marriage which was filed on 4 October 1978; and a copy of the applicant's and the FSM's Final Order and Decree of Divorce which was filed in the Family Court of the Ninth Judicial Circuit in the State of South Carolina, on 20 December 2002.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the FSM was born on 8 February 1939.  He served in an enlisted status from 17 December 1958 until 31 December 1978 when he was honorably separated for the purpose of retirement.  On the date of his transfer to the 
retired Reserve, the FSM had been promoted to the rank and pay grade Sergeant First Class (SFC)/E-7, and he had completed 20 years and 15 days active duty service.

2.  On 12 September 1978, the FSM completed a DA Form 2339 (Application for Voluntary Retirement).  In Item 32 (Remarks) the FSM entered the following statement:  "I have been briefed concerning the Survivor Benefit Plan.  I understand that I will automatically be in the plan and will pay the full cost of coverage for my wife and children, if applicable, unless I submit an election form to the contrary prior to my retirement."

3.  The FSM and the applicant were married on 6 October 1978.

4.  On 29 November 1978, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  The FSM reported he was married and had dependent children.  At that time, he elected to participate in the SBP and elected coverage for spouse and dependent children at the reduced amount of $400.00.

5.  The FSM and the applicant divorced on 20 December 2002.  In the Final Judgment of Divorce (on page 6) it specifically states, it is "Ordered, Adjudged and Decreed that defendant [the applicant] shall be named beneficiary for Plaintiff's [the FSM's] United States Army Survival [sic] Benefits payments."

6.  The FSM died on 4 January 2009.  The death certificate shows his marital status as married.  The FSM's surviving spouse's name on the death certificate is listed as T*****y W******s.  The surviving spouse's date of birth is unknown.  The applicant's date of birth is 15 December 1952.

7.  On 6 August 2009, a Defense Finance and Accounting Service (DFAS) representative telephonically advised a staff member of the ABCMR that the FSM's Retiree Account Statement showed deductions were being made from the FSM's retired pay for the SBP coverage.  The Retiree Account Statement showed the FSM's SBP coverage was for "Spouse and Child only in a reduced amount."  The date of birth of his spouse as listed on the Retiree Account Statement is 15 December 1952, the applicant's date of birth.  The DFAS representative further confirmed that SBP payments are being made to the FSM's surviving spouse, T*****y.

8.  Public Law 92-425, enacted 21 September 1972, 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. 
Elections are made by category, not by name (emphasis added), and are irrevocable except as provided for by law.


9.  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.  

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

11.  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 election.

12.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, an 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.

2.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse to submit a request for a deemed former spouse SBP coverage election within 1 year of divorce.

3.  Upon the FSM's and the applicant's divorce, if former spouse coverage had been requested by the FSM within 1 year of the divorce, the coverage would have been changed from spouse and child only to former spouse and child only coverage.  The FSM had the option to elect former spouse coverage for the applicant but did not.  Their divorce decree alone did not constitute a valid deemed election.

4.  The evidence of record indicates that the FSM never notified DFAS officials to change his SBP election from spouse and child only at a reduced amount to former spouse and child coverage at a reduced amount within 1 year of the divorce.

5.  The evidence further indicates that the applicant did not submit a deemed election and the evidence shows that DFAS did not have a deemed election from the applicant on file.

6.  Even though the applicant's date of birth appears on the Retiree Account Statement, as indicated by the DFAS representative, the FSM's widow is the legal annuitant because SBP annuity elections are made by category and not by name.  The Retiree Account Statement clearly shows SBP coverage type was for spouse and child only at a reduced amount.  This Board has no authority to divest the FSM's widow of her SBP interest.

7.  Former spouse SBP coverage was not elected and the applicant did not submit a request for a deemed election within the required time frame.  Since the FSM's widow has not been a party to this request and has not given her consent to give up her legal right to the SBP annuity, the applicant is not entitled to a SBP annuity and there is no basis for granting her 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 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)                                         AR20090004478



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ABCMR Record of Proceedings (cont)                                         AR20090004478



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