IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090008249 


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 ex-spouse of a deceased former service member (FSM), requests that the FSM's records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage and that she be paid the SBP benefit payments.

2.  The applicant states that after 36 years of marriage, the FSM divorced her for another woman and left her with four children, no job, and very little income.  She goes on to state that the court entered a final judgment requiring the FSM to maintain survivor benefits for her and stated that it was irrevocable.  She goes on to state that the FSM’s attorney obtained the necessary forms from the Defense Finance and Accounting Service (DFAS) and she filled them out and provided the premiums to bring the SBP up to date.  However, a year later, the FSM petitioned the court to modify the divorce judgment.  After a 5-year lengthy and expensive period, a new judge ultimately ruled in 1988 that the survivor benefits were periodic alimony and that the FSM could terminate her court-ordered SBP benefits.  She continues by stating that in 1989, at the age of 64, she remarried a retired master sergeant and remained married until he passed away in December 2008.  She further states that the FSM passed away on 8 December 2004 and his spouse passed away in 2006 and she had never received any survivor benefits after the FSM passed away.  She concludes by stating that she desires the FSM’s SBP benefits because they are greater than her last husband’s benefits; however, after obtaining legal counsel, she has been told that the matter cannot be addressed in Alabama State courts.

3.  The applicant provides a three-page statement of her case; a copy of her original divorce decree, dated 8 March 1983; a letter from her counsel and an amended final judgment; copies of documents relating to enrollment in the SBP from the FSM’s attorney and DFAS; and a response to a motion for summary judgment.

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 was serving in the rank of lieutenant colonel on 24 October 1962 when he completed a DA Form 1041 (Election of Options under the Uniform Services Contingency Option Act (USCOA) of 1953) indicating that he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.  The form was authenticated by the personnel officer on 1 November 1962.

3.  On 30 November 1966, the FSM was retired in the rank of colonel.  He had served 26 years, 1 month, and 2 days of total active service and was transferred to the Retired List effective 1 December 1966.  The applicant was listed as his spouse at that time.

4.  The FSM filed for divorce in Madison County, AL and on 8 March 1983 was granted a divorce from the applicant.  Paragraph 7 of the divorce decree (final judgment) specified that “As further periodic alimony, the Plaintiff-husband shall maintain in full force and effect the existing survivors pension benefit with the U.S. Army, naming the Defendant-wife as beneficiary.”

5.  On 12 January 1984, the FSM’s counsel dispatched a letter to the U.S. Finance and Accounting Office at Fort Benjamin Harrison, IN, which is now known as the Defense Finance and Accounting Service (DFAS)-Indiana, providing a copy of the divorce decree and requesting the forms necessary to establish a former spouse election under the SBP.  A response was dispatched along with the forms to the FSM’s counsel on 7 February 1984.

6.  On 16 February 1984, the FSM’s counsel dispatched a letter to the FSM informing him that the applicant had completed her portion of the forms and provided a cashier’s check to cover the arrearages of payments of the SBP and that he was required to complete the enclosed forms in the appropriate areas.  There is no evidence in the available records to show that he ever submitted the forms or that he forwarded the cashier’s check provided by the applicant to cover arrearages.  Additionally, telephonic contact by a staff member of the Board with officials at the DFAS revealed that the FSM never made an election under the SBP and that his records/account is no longer active.  Officials at DFAS also indicated that a letter was dispatched to the former spouse indicating that a former spouse election was never received by that agency.

7.  Meanwhile, the FSM petitioned the court for a summary judgment regarding paragraph 7 of the original divorce decree contending that paragraph 7 provided what amounted to “periodic alimony” and should be terminated because the applicant was cohabitating with a member of the opposite sex and the applicant had admitted to the complaint.  The court determined that the FSM’s argument was valid and ordered on 3 November 1988, that he be relieved of the obligations of paragraph 7 of the original decree which ordered him to provide survivor pension benefits to the applicant.

8.  The FSM remarried and the applicant subsequently remarried a retired master sergeant in 1989, at the age of 64.  The FSM passed away on 8 December 2004 and his new spouse passed away in 2006.

9.  Meanwhile, in 2005, the applicant retained counsel in an attempt to receive the FSM’s SBP benefits.  However, because the FSM had obtained an amendment to the original court decree, no further actions could be taken in the courts.

10.  SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the death of covered former service members.  As a Federal Government insurance program, partially subsidized by participant’s premiums and mainly subsidized by the Federal Government, it is strictly governed by Federal statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is incumbent upon individuals to timely apply to participate.

11.  Public Law (PL) 83-239 dated 8 August 1953 enacted the Uniformed Services Contingency Option Act (USCOA) that offered service members an opportunity to provide a 1/2, 1/4, or 1/8 annuity of retired pay for persons who were dependent on them at retirement.  The plan was self-supporting (no Federal subsidies) and elections had to be made before the end of the 18th year of service.  The USCOA automatically converted to the Retired Serviceman's Family Protection Plan (RSFPP) with the same election options and annuity amounts as the USCOA.

12.  Public Law 92-425, the SBP, enacted 21 September 1972, repealed the RSFPP and provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The RSFPP did not automatically covert to the SBP.  There was an open enrollment for retirees from 21 September 1972 to 20 September 1973 that was subsequently extended to 20 March 1974.  There was also an open enrollment from 1 October 1981 to 30 September 1982 and there was an open enrollment for former spouse coverage from 24 September 1983 to 23 September 1984.

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

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

15.  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.

16.  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.

17.  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 contention that she should be designated to receive the FSM’s SBP annuity has been noted.

2.  The FSM’s official records show that he declined the opportunity to participate in the USCOA, a predecessor of the SBP, in 1962 while he was still on active duty.  Accordingly, no premiums were ever withheld from his retired pay to provide an annuity to his beneficiaries.

3.  The evidence of record also fails to show he ever elected to participate in any of the annuity programs that were offered to retirees.  This was further confirmed by officials at DFAS who were responsible for any deductions/payments that would have been made if he had completed an election to participate in such programs.

4.  It is also noted that the original divorce decree directed in 1983 that the FSM would maintain in full force and effect the existing survivor pension benefits with the Army and name the applicant as the beneficiary.  However, it appears that there were no such benefits in force or effect because the FSM had declined enrollment in such programs in 1962, 21 years prior, and there is no evidence to show that he ever elected to participate in the SBP.

5.  It is further noted that the FSM subsequently petitioned the court and had the requirement to provide former spouse protection to the applicant revoked by the same court that issued the original court order.

6.  The applicant’s contention that she was unaware that such an order had been issued at the time has been noted; however, the court order that revoked the requirement for the FSM to provide her former spouse protection reflects that the applicant acknowledged at the time that the FSM’s allegations were substantiated, which indicates that she was aware of the FSM’s intentions at the time.  In any event, the FSM was never enrolled in the SBP and could not be summarily forced to do so.

7.  Therefore, in the absence of evidence to show that the FSM ever enrolled in the SBP and that he made a former spouse election naming the applicant as the beneficiary, there appears to be no basis to grant 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)                                         AR20090008249



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ABCMR Record of Proceedings (cont)                                         AR20090008249



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