IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20090021631 


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 a deceased former service member (FSM), requests to be the beneficiary of the FSM's Survivor Benefit Plan (SBP) and payment of the SBP annuity.

2.  The applicant states that she and the FSM were divorced on 6 November 2001.  Their divorce decree stipulated she would remain the beneficiary of his SBP.  She submitted a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and she received a letter from the Defense Finance and Accounting Service (DFAS) officials on 15 March 2002 acknowledging her application for former spouse payments from retired pay.  The DFAS letter also instructed her to make a deemed election if she was designated a former spouse beneficiary.   She did not know how to make a deemed election so she submitted a statement to DFAS requesting full SBP within the same year as that of her divorce.

3.  The applicant provides the following documents:

* The FSM's death certificate
* A letter from DFAS
* A self-authored handwritten letter
* A copy of DD Form 2293
* A copy of her judgment/divorce decree



CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 16 August 1958.

2.  He enlisted in the Regular Army on 8 July 1977 and served through multiple extensions or reenlistments, within and outside the continental United States, and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 29 September 1983, the FSM married his first wife, Stella, the applicant.

4.  On 15 October 1998, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel), applying for retired pay.  He indicated that he was married and had dependent children and elected spouse only, full SBP coverage.

5.  He was honorably retired on 31 December 1998 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 January 1999.  He was credited with 21 years, 5 months, and 23 days of total active service.

6.  On 19 September 2001, the FSM and the applicant divorced.  The divorce decree ordered that the SBP, provided it was continued in full effect at the time of the FSM's retirement and continued as of the date of this order, would remain in full force and effect, with the applicant designated as the survivor for at least 50 percent (%) of the benefits.

7.  On 5 June 2001, the applicant submitted a DD Form 2293 wherein she requested direct payment through a designated court-ordered division of property to her as a former spouse from the FSM's retired pay.

8.  On 15 March 2002, by letter, a DFAS official informed the applicant that payment of a portion of the FSM's retired pay would commence within 30 days after the FSM had been notified.  The letter also stated if the applicant's divorce decree specified she were to be designated as a former spouse beneficiary, she should make a deemed election within one year of her divorce.

9.  There is no indication that the applicant made a deemed election within one year of the divorce.  However, she submitted a handwritten note that states "I [Applicant] would still like to have the SBP coverage.  My social security number (SSN) is 2xx-9x-3xxx.  My ex-husband [FSM] SSN is 5xx-3x-3xxx."  This note has another written entry showing "deemed election" and the date "8-16-02 
[16 August 2002]."

10.  On an unknown date, the FSM married his second spouse, Manuela.

11.  On 7 July 2009, the FSM died.  His death certificate shows he was married to Manuella at the time of death.

12.  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.

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

14.  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.

15.  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 applicant requests she be designated as the beneficiary of her former husband's SBP and payment of the SBP annuity based on his death.

2.  The evidence of record shows that at the time of his retirement in 1998, the FSM elected to participate in the SBP for spouse coverage.  Years later, he and his spouse were divorced in September 2001.  The divorce decree ordered the FSM to maintain his election of his first spouse as his surviving beneficiary and that she be designated as the survivor for at least 50% of the benefits.  However, the FSM did not make a former spouse election within one year of the divorce as required by law.

3.  The DFAS letter related to payment of a portion of the FSM's retired pay to her clearly alerted her to the need to deem the election within one year of the divorce.  Although the applicant provided a handwritten note supporting her claim that she submitted a request to deem the SBP election there is no indication it was sent to or received by DFAS within one year of the applicant's divorce.

4.  Furthermore, the FSM remarried prior to his death.  Since SBP elections are made by category, not by name, once the applicant and his first spouse (the applicant) were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, at the time of the FSM's death, any SBP benefits would have to be paid to the beneficiary at the time of death, his surviving spouse, not his former spouse, if they had been married for at least one year.

5.  The Army Board for Correction of Military Records (ABCMR) may not correct the FSM's records to effectively change his election to former spouse, for so doing may deprive his surviving spouse at the time of death of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from the current spouse renouncing any interest in the SBP annuity.

6.  In view of the foregoing evidence, she is not entitled to 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)                                         AR20090021631



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ABCMR Record of Proceedings (cont)                                         AR20090021631



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