BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090013323 


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 former spouse of the deceased former service member (FSM), requests correction of the FSM's military records to show that he had elected former spouse Survivor Benefit Plan (SBP) coverage.  The applicant further requests to receive an SBP annuity based on the FSM's SBP election.

2.  The applicant states that she always thought the Army took care of the spouse of a military person.  The spouse serves in the military just as well as the military person, just not in the same way.  The applicant contends that she was receiving half of the FSM's retired pay via their bank account.  As a military spouse, she had to move from place to place requiring her to uproot her employment and then get reorganized.  To have done this and now come out with nothing is devastating.  She feels that she has just wasted those years of her life and now has to struggle.  The FSM's current surviving spouse did not serve the military time.  The applicant says that her counsel may have lost her the opportunity for appeal.

3.  The applicant provides no additional documentation in support of her application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant receive an SBP annuity.

2.  Counsel states that the applicant was married to the FSM at the time of the FSM's retirement and is entitled to a portion of the FSM's retired pay.  Counsel contends that the court awarded the applicant survivor's benefits.

3.  Counsel provides copies of the applicant's marriage license, the FSM's retirement orders, their divorce decree, and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  On 18 June 1973, the FSM enlisted in the Regular Army.

2.  On 1 August 1974, the FSM married Martha [the applicant].

3.  The FSM served through a series of enlistments and retired for length of service on 31 January 1990.  He had attained the rank of staff sergeant, pay grade E-6, and had completed more than 21 years of creditable active duty service.

4.  On 21 November 1989, the FSM submitted DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he elected full SBP coverage for his spouse [the applicant] and his two dependent sons.

5.  On 2 March 1992, the applicant and FSM were divorced.  The court ordered that the applicant was to receive one half of the FSM's military retirement.  The divorce decree is mute as to SBP benefits.

6.  The certificate of death, provided by the applicant's counsel, shows that the FSM died on 19 April 2009.  It also shows that the FSM was married at the time of his death to Marcia B____.

7.  A DD Form 2656 (SBP Election Change Certificate), dated 19 April 2009, indicates that the FSM had remarried on 12 May 2000 and had former spouse coverage that he wanted to change to spouse only coverage based on his remarriage.

8.  Records at the Defense Finance and Accounting Service (DFAS) show that Marcia [FSM's spouse at the time of his death] is receiving an SBP spousal annuity.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

10.  Title 10, U.S. Code, section 1448(b)(2), permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.

11.  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 contends that the FSM's SBP election should be changed to former spouse and that she is entitled to receive SBP benefits.

2.  Counsel's contention that the court awarded the applicant survivor's benefits is in error.  The court only awarded a portion of the FSM's retired pay and did not address the issue of SBP.

3.  The FSM originally elected to participate in the SBP for spouse and children coverage in 1989.  He and the applicant divorced in 1992.  The divorce decree did not mention the SBP; therefore, the applicant did not have the option of requesting a deemed election of the SBP.  In fact, the applicant's interest in SBP ended on the day of their divorce.

4.  There is no evidence showing that the FSM made a voluntary election of former spouse coverage for the applicant's benefit.  In fact, DFAS did not become aware of the divorce and subsequent remarriage until after his death.

5.  In view of the above, there is no basis for granting 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)                                         AR20090013323



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ABCMR Record of Proceedings (cont)                                         AR20090013323



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