IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090011773 


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 the records of her deceased former husband, a former service member (FSM), be corrected to show her eligibility for a Survivor Benefit Plan (SBP) annuity based on the FSM's death.  

2.  The applicant states although divorced, she and the FSM reconciled and planned to remarry.  She claims to have discussed military retirement several times while getting his final affairs in order.  During these discussions, the FSM indicated she was listed as his beneficiary on his retirement and he believed as long as he did not change the information, the benefits would go to her.  She claims the FSM had total faith his wishes would be carried out and believed the Army would follow through with taking care of her.  

3.  The applicant provides the following documents in support of the application:  

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 May 1991
* DD Form 1883 (SBP Election Certificate), dated 4 January 1992
* DD Form 2656-7 (Verification for Survivor Annuity), dated 5 September 2008
* Marriage Certificate
* FSM's Death Certificate
* Divorce Degree, dated 7 November 2001
* W-4P (Withholding Certificate for Pension or Annuity Payments), dated 9 May 2009
* FSM's Last Will and Testament, dated 31 August 2007
CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he served in the Regular Army from 28 January 1971 through 29 October 1972.  On 30 October 1972, he enlisted in the Army National Guard (ARNG).  

2.  On 18 September 1987, he married the applicant. 

3.  On 6 December 1991, a Notification of Eligibility for Retired Pay at Age 60 was prepared for the FSM by the Nebraska ARNG.  It informed the FSM he completed the required years of service necessary to qualify for retired pay at age 60.  

4.  On 4 January 1992, the FSM completed a DD Form 1883 in which he elected full "Spouse Only" SBP coverage under Option C (Immediate Coverage).  The applicant was named as his spouse in item 10 (name of spouse) of the form. 

5.  On 31 May 1992, the FSM was honorably discharged from the ARNG and transferred to the Retired Reserve.  

6.  On 7 November 2001, the FSM and applicant were divorced in the District Court of Lancaster County, Nebraska.  The divorce degree indicates the FSM and applicant entered into a property settlement agreement that was approved by the court in full and made a part of the divorce decree.

7.  The property settlement agreement stipulates the FSM and applicant would have as their sole and separate property all of the following solely in their own name, free and clear of any claim by the other: 

* Personal Effects
* Accounts and Investments in his name only
* Household Goods and Furnishings
* Life Insurance
* Individual Retirement Accounts, Annuities, Pensions, Profit Sharing Plans, 401(k) Retirement Accounts, All Deferred Compensation Plans and Qualified Plans
* Motor Vehicles, Recreation Vehicles, Boars, Aircraft
* Claims and Suits
* Other Personal Property

8.  The divorce decree and property settlement agreement fail to identify the FSM's SBP as a separate matter and both the applicant and FSM waived and relinquished any and all interests or rights of any kind not covered in the agreement.   

9.  The record is void of any change of SBP election made by the FSM subsequent to his 2001 divorce from the applicant. 

10.  On 3 November 2007, the FSM died at the age of 56.  The death certificate shows his marital status as divorced.

11.  The applicant provides a last will and testament completed by the FSM on 31 August 2007.  It stipulates if the applicant survived him, he bequeathed her all of his interest in the following:

* Household furniture and furnishings
* Automobiles
* Books
* Paintings
* Jewelry
* Watches
* Silverware
* China
* Wearing apparel
* Family stores
* All other articles of household or personal use, and other tangible personal property encompassed by Nebraska law

The will makes no mention of SBP entitlement.

12.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act relating to SBP.  It permits a person who is required by court order to elect to provide an annuity to a former spouse incident to a proceeding of divorce 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 1 year of the date of the court order or filing involved.

13.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse, who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.  There are no provisions allowing the former spouse to request a deemed election when SBP is not court-ordered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention she should receive an SBP annuity based on the death of the FSM was carefully considered.  However, the evidence does not support this claim. 

2.  By law, when SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse.  There are no provisions allowing the former spouse to request a deemed election when SBP is not court-ordered.

3.  The evidence in this case shows the FSM elected coverage for the applicant as his spouse upon his retirement in 1992.  However, it fails to show he elected to cover her as a former spouse after their 2001 divorce.  

4.  Further, the divorce decree and accompanying property settlement agreement fail to identify entitlement to SBP coverage for the applicant as a former spouse.  In addition, the FSM's last will and testament fails to identify SBP as a bequeathed item and is in any extent not the proper mechanism with which to establish SBP coverage.  Absent any independent evidence of the FSM's intent to provide SBP coverage to the applicant as a spouse or former spouse, there is an insufficient evidentiary basis to support granting the 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)                                         AR20090011773



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ABCMR Record of Proceedings (cont)                                         AR20090011773



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