IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010


		DOCKET NUMBER:  AR20090011173 


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 her former spouse committed fraud against her.  She contends that in 1995 a copy of her divorce decree along with a request for a deemed election was submitted to the Department of Defense, that the divorce decree states that she is the SBP beneficiary, and that she has been paying the premiums for the past 13 years.

3.  The applicant provides a copy of her divorce decree; an affidavit, dated 7 November 2008; a letter from the Defense Finance and Accounting Service (DFAS), dated 26 August 2008; and a letter she wrote to DFAS, dated 22 April 2008, 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 enlisted in the Army on 1 February 1974.  He and the applicant married on 26 June 1974.

3.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 20 October 1993, shows he enrolled in the SBP for spouse and dependent children coverage, full base amount.

4.  The FSM retired in the rank of staff sergeant on 31 January 1994 after completing over 20 years of active service.

5.  The FSM and the applicant divorced on 13 December 1994.  The divorce decree states that the applicant is named beneficiary under the Armed Services SBP and that the FSM's election to provide the SBP benefits to the applicant should be continued and maintained in full force and effect and should not be altered or withdrawn by the FSM during his lifetime.  The decree also states that the premiums for maintenance of the SBP should be paid by the applicant.

6.  The FSM remarried on 22 February 1996.

7.  DFAS records fail to show the applicant submitted a request for a deemed election for former spouse coverage within 1 year after the date of the decree of divorce.  DFAS records show no deduction of SBP premiums is being taken from the applicant's portion of the FSM's retired pay.

8.  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.

9.  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.

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

11.  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 1 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.

12.  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 1 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.  Though the applicant states she made a request for a deemed election within the statutory 1-year time limit, no such document appears in DFAS records and she provided no such document.  DFAS records show no deduction of SBP premiums is being taken from the applicant's portion of the FSM's retired pay.

3.  There is evidence to show the FSM remarried on 22 February 1996.  At the 
1-year anniversary of their marriage his current spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

4.  The ABCMR may not act to terminate the rights of the FSM’s current spouse in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM's current 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 an 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; or

	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 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 as described above.

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)                                         AR20090011173



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ABCMR Record of Proceedings (cont)                                         AR20090011173



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