IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012684 


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 records of her deceased former spouse, a former service member (FSM), be corrected to show he participated in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states, in effect, she and the FSM were legally married at the time of his retirement, they lived together as husband and wife until their divorce, and they stayed in contact until his death.

   a.  She states that in their divorce decree, the judge ordered the FSM to inform the appropriate agency regarding the SBP determination.  She also states that she was under the impression the FSM complied with the court order and she was not aware she had to contact the appropriate agency.

   b.  She states that in September 2009 she applied to the Defense Finance and Accounting Service (DFAS) for SBP benefits, but was informed that her application was denied.

   c.  She states she has received conflicting information regarding her eligibility for Army benefits, including the FSM's Army pension, life insurance, death benefits, and SBP.  She adds it would be helpful if she could contact an office with someone knowledgeable in the area of Army retirement benefits as relates to former spouses of deceased service members.

3.  The applicant provides, in support of her request, the FSM's discharge document; copies of their marriage certificate, divorce decree, and motion to amend the petition; the FSM's death certificate; and a letter to DFAS.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted and entered active duty in the Regular Army (RA) on
27 December 1976.  He and the applicant married on 25 December 1977.

2.  On 26 May 1998, the FSM completed a DA Form 2339 (Application for Voluntary Retirement).  Item 30 (Statement of Understanding), paragraph 2, states "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."  The document shows that the FSM and the FSM's commander each affixed their signature on the document.

3.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the RA on 31 December 1998 after serving honorably on active duty for a total of 22 years.  He was placed on the Retired List effective 1 January 1999.

4.  In support of her application, the applicant provides the following documents:

	a.  A State of Florida, Marriage Record, that shows she and the FSM married on 25 December 1977.

   b.  A Circuit Court of the Second Judicial Circuit, Leon County, Florida, Final Judgment of Dissolution of Marriage with Property But No Dependent or Minor Child(ren), in the marriage of the applicant and FSM.  This document shows, in pertinent part, that with respect to the FSM's military retirement, the FSM was to arrange for payment from his pension to go directly to the applicant and take necessary action to see that it begins by 1 June 2002.  The court order was authenticated by the Circuit Judge and dated 15 April 2002.

   c.  A Circuit Court of the Second Judicial Circuit, Leon County, Florida, Motion to Amend the Petition, in the marriage of the applicant and FSM.  This document shows the applicant requested that the Court equitably distribute the parties' retirement plans, including, in pertinent part, "Military Retirement, or any and all other forms of retirement and death or survivor's benefits."  The court order was authenticated by the Circuit Judge and dated 4 April 2002.
   
	d.  A State of Florida, Certificate of Death, that shows, in pertinent part, the FSM died on 30 January 2009 and that he was married to Shirley T_____ at the time of his death.

	e.  A letter from the applicant to DFAS, dated 27 April 2009, in which she reported the FSM's death.  She states she was under the assumption that the FSM had given information concerning their divorce to the appropriate military department and that she was not aware of notifying the military department within the first year of the divorce.  She also provides copies of the final judgment of the divorce settlement and states she was awarded the FSM's SBP in the divorce process.

5.  The General Processing Branch, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify information relevant to the FSM's SBP election, coverage, and participation.

   a.  DFAS verified that the FSM's SBP was changed from spouse and child to spouse only when the FSM's child was no longer his dependent.

	b.  On 4 March 2009, the FSM's widow (i.e., spouse at the time of his death), Shirley T_____, submitted an SBP annuity packet to DFAS.  Included in the SBP packet was a marriage certificate showing that she and the FSM married on
3 January 2004.  Accordingly, Shirley T_____ was covered under the FSM's SBP effective 1 February 2005.

	c.  On 18 March 2009, DFAS received a copy of the FSM's divorce decree pertaining to his first marriage showing the divorce was final on 15 April 2002.

   d.  Prior to 18 March 2009, there was nothing in DFAS files to indicate that the FSM was divorced from the applicant.  In addition, there is no election for former spouse coverage from the FSM or a "deemed election" from the applicant.
   
   e.  Shirley T_____ is currently receiving the SBP annuity. 

6.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

7.  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.  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.

8.  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 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.

9.  Title 10, U.S. Code, section 1447 (Definitions), in pertinent part, states the term "widow" means the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay was married to him for at least one year immediately before his death.

10.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), in pertinent part, states, a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the Plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected to show the FSM participated in the SBP with former spouse coverage because the final judgment of their divorce settlement states she was awarded the FSM's SBP.

2.  The evidence of record shows that, upon retirement from the Army, the FSM elected SBP with spouse and child coverage, SBP premiums were deducted from the FSM's retired pay, and the FSM maintained spouse coverage after his child was no longer eligible.

3.  By law, incident to a proceeding of divorce, a member has one year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of the date of a court order of divorce or filing involved.

4.  The evidence of record shows the applicant and FSM divorced on 15 April 2002.  The language of the divorce decree is not specific with regard to the FSM's SBP; it merely directs the equitable distribution of the FSM's survivor benefits.  The divorce decree did not direct the FSM to provide the applicant with SBP (former spouse) coverage.

   a.  There is no evidence that the FSM notified DFAS officials to change his SBP election to former spouse coverage within 1 year of the divorce.  In addition, the FSM's retired pay record maintained by the DFAS fails to show the applicant made a "deemed election" within 1 year of the date of the court order or filing.

   b.  The evidence of record shows that in April 2009, the applicant notified DFAS of the applicant's death, which occurred on 30 January 2009, and requested former spouse SBP benefits based upon their April 2002 divorce settlement.  However, this notice was well after the one-year period of the divorce and did not satisfy the strict requirement for former spouse SBP entitlement by deemed election.

   c.  Thus, the evidence of record shows that neither the FSM nor the applicant took the necessary action to change the FSM's SBP election from spouse to former spouse coverage within 1 year of the divorce.

   d.  Therefore, in view of the foregoing, the applicant is not entitled to SBP in this case.

5.  The Board notes that the evidence of record shows the FSM was married at the time of his death; he married Shirley T_____ on 3 January 2004; and that Shirley T______ is currently receiving the SBP annuity. 

   a.  When the FSM remarried, the second spouse became eligible for the spouse SBP coverage, as SBP coverage is governed by category.  Also, at the one-year anniversary of their marriage, the FSM's second spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

	b.  Absent a notarized statement from the FSM's widow asserting that she relinquishes any claim to the FSM's SBP annuity in perpetuity in favor of the applicant, or an order from a court with proper jurisdiction over the FSM's widow directing the government to pay the SBP annuity to the applicant and not the widow, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  Therefore, in view of the foregoing, relief cannot be granted in this case, at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The applicant is advised that she may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding her eligibility for Army benefits.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp



      _______ _   _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)                                         AR20090012684



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ABCMR Record of Proceedings (cont)                                         AR20090012684



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