IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090008265 


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 Survivor Benefit Plan (SBP) election made by her deceased ex-spouse, a former service member (FSM), be changed from spouse to former spouse coverage.

2.  The applicant states she was divorced from the FSM on 17 September 1998 and that within one year of her divorce she had submitted a copy of her divorce decree to the Defense Finance and Accounting Service (DFAS) requesting that the SBP election made by the FSM be changed from "Spouse Only" to "Former Spouse."  She also states that after her ex-spouse passed away, she called DFAS to check on the SBP annuity and she was told that the SBP election had never been changed to "Former Spouse."  She further states that since she had submitted the divorce decree and her request to change the SBP election to "Former Spouse" within the required one-year time frame and the fact that her divorce decree states that she would be named the irrevocable beneficiary of her ex-spouse's SBP, she feels that this is an error that needs to be corrected.

3.  The applicant provides a copy of her and the FSM's divorce decree and a copy of the Joint Stipulation and Settlement Agreement from the Circuit Court of the Fifth Judicial Circuit, Citrus County, FL, in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he served on active duty for 21 years until being retirement, in the rank of sergeant first class (SFC), on 31 May 1989.

2.  On 17 September 1977, the applicant and FSM were married.

3.  On 1 March 1989, during his retirement processing, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  In this document, he elected full “Spouse Only” SBP coverage with the applicant being named as the beneficiary.

4.  On 17 September 1998, the applicant and FSM were divorced.  The Joint Stipulation and Settlement Agreement issued by the Circuit Court of the Fifth Judicial Circuit for Citrus County, FL, stipulated that the "wife shall be named as the irrevocable beneficiary so that she receives the survivorship benefits in the event of the husband's death."  The Final Judgment for Dissolution of Marriage states that the Citrus County Court reserved and retained jurisdiction of the SBP election as stated in the Settlement Agreement.

5.  There is no evidence of record or independent evidence provided by the applicant that shows the FSM ever made the Former Spouse SBP election directed in the divorce decree, or that the applicant requested a deemed election be made within one year of their divorce.

6.  On 23 December 1998, the FSM remarried and changed the SBP beneficiary name to his current wife (Mxxxxxx).  The SBP coverage remained in the spouse category.

7.  On 22 February 2009, the FSM died.

8.  A review of the DFAS record on the FSM confirms that in a valid DD Form 
2656-7 (Verification for Survivor Annuity) on file, the FSM elected spouse coverage and designated his current wife as his SBP beneficiary.  Further, the DFAS record confirms that his widow is in fact receiving the SBP annuity.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that the State courts could treat military retired pay as community property in divorce cases if they so chose.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

10.  Public Law-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

11.  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.  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's contention of entitlement to "Former Spouse Only" coverage under the SBP was carefully considered.  However, 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.  There is no independent evidence of record to show that the applicant ever requested a deemed election be made.  

3.  In this case, it is clear that the FSM was initially ordered to provide SBP coverage for the applicant as the "Former Spouse."  However, he never changed his election from spouse to former spouse.  The only SBP election on record is "Spouse Only."  In accordance with this election, his spouse at the time of his death is now receiving the SBP annuity.

4.  There are equity considerations that would normally be entertained in this case, given the FSM clearly was required to provide the applicant SBP coverage after their divorce.  However, the evidence of record confirms that the FSM’s widow is now listed as his lawful beneficiary for SBP benefits.  It is recognized that the divorce decree awarded the SBP to the applicant and specifically ordered the FSM to maintain the applicant’s designation as a former spouse SBP beneficiary.  Unfortunately, it appears the FSM did not take the action directed by the court, nor does DFAS have a record that the applicant made a request for a deemed election of the SBP within one year of their divorce, as required by the SBP statute.  The FSM remarried and the SBP spouse coverage vested in his new spouse one year later.

5.  The Board may not divest the FSM's widow of her property interest in the SBP without an order from a State court of competent jurisdiction which includes the widow as a party.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM’s widow 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)                                         AR20090008265



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ABCMR Record of Proceedings (cont)                                         AR20090008265



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