IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018277 


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:

The applicant, as the former spouse of a former service member (FSM), defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM’s Survivor Benefit Plan (SBP) election be changed from spouse to former spouse coverage and that the applicant be paid the SBP annuity.  

2.  Counsel states the following:

* The applicant has not received SBP benefits
* The applicant was married to the FSM for over 36 years
* Partial Summary Judgment and Final Judgment and Decree of 
Divorce ordered benefits be paid

3.  Counsel provides a copy of the Partial Summary Judgment and Final 
Judgment and Decree of Divorce and Separation Agreement in support of the application.

CONSIDERATION OF EVIDENCE:

1.  The FSM completed prior service in the U.S. Air Force.  The FSM and the applicant were married on 15 May 1954.  He enlisted in the Regular Army on 11 September 1962.  
2.  On 15 March 1973, the FSM completed a DD Form 1883 (SBP Election Certificate) and elected to participate in the SBP for spouse coverage at a reduced amount.  The applicant is listed as his spouse.  

3.  The FSM continued to serve on active duty and was medically retired on 26 June 1973.  

4.  The FSM and the applicant entered into a Property Settlement Agreement in February 1990.  The Property Settlement Agreement stated the following regarding survivor’s benefits: “Further Husband shall continue to have survivor’s benefits deducted from his military retirement pay such that, if Wife survives Husband, she shall be entitled to receive such survivor’s benefits, provided she does not remarry.”  

5.  The FSM and the applicant were divorced on 4 April 1991.  

6.  He remarried in 1993.

7.  The FSM died on 21 August 2009.  

8.  Information obtained from the Defense Finance and Accounting Service (DFAS) on 9 March 2010 revealed that his widow, A____, was registered as the beneficiary of the SBP since February 1994.  No election form was on file.  

9.  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.

10.  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.

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) 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.

13.  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 one 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.

14.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The contentions submitted by counsel have been noted.  However, the evidence of record does not indicate that an error or injustice exists in this case.

2.  The FSM retired on 26 June 1973 and he elected to participate in the SBP for reduced spouse coverage.  He was married to the applicant at that time.

3.  The FSM and applicant were divorced on 4 April 1991.  The Property Settlement Agreement indicated the FSM would “continue to have survivor’s benefits deducted from his military retirement pay such that, if Wife survives Husband, she shall be entitled to receive such survivor’s benefits, provided she does not remarry.”  However, there is no evidence which indicates the FSM or the applicant submitted a written request to DFAS to change the SBP coverage from spouse to former spouse within one year of their divorce as required by law.

4.  The FSM remarried sometime in 1993.  By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage.

5.  The FSM died on 21 August 2009.  The information from DFAS shows his current spouse, A____ as the beneficiary.  Since the lawful beneficiary of the FSM's SBP is his widow, and in the absence of a timely deemed election, the ABCMR cannot take away her right to the SBP without her irrevocable consent or due process of law.  Therefore, it would be inequitable to grant the applicant’s request at this time.  

6.  The applicant may seek reconsideration of the Board’s denial if she obtains a sworn statement from the FSM’s widow consenting to the correction in favor of the applicant and acknowledging the Board’s action would terminate the widow’s annuity.  In the alternative, the Board could grant relief only with a judgment from a court of competent jurisdiction, in a suit joining the FSM’s widow as a party, that declared the applicant the superior shareholder in the SBP.

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)                                         AR20090018277





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ABCMR Record of Proceedings (cont)                                         AR20090018277



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