IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100009589 


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 ex-spouse of the deceased former service member (FSM), requests correction of the FSM's records to show she made a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of divorce.

2.  The applicant states upon the FSM's death, she was to receive one third of his pension death benefit as stipulated in their separation agreement.  She states that the Defense Finance and Accounting Service (DFAS) advised her that a deemed election had not been made within one year of their divorce.  A minor child is currently receiving the full SBP benefit with no provisions for her.

3.  The applicant provides copies of:

* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 October 2006
* their Certificate of Marriage
* their Separation Agreement, dated 29 September 1988
* their Final Judgment of Divorce, dated 21 June 1991
* the FSM's Certificate of Death

CONSIDERATION OF EVIDENCE:

1.  The FSM was commissioned a second lieutenant in the Regular Army on 
7 June 1978.  He served continuously in the Regular Army until his retirement.

2.  The applicant and the FSM were married on 18 June 1978 in Bergenfield, NJ.

3.  The applicant and the FSM executed a separation agreement in the State of Maryland, County of Baltimore on 29 September 1988.  According to this agreement they agreed the FSM had accumulated a pension from the U.S. Government during the 10 years of their marriage.  The FSM agreed to assign to the applicant one third of all of the death benefits of the pension.

4.  On 21 June 1991, the final divorce was adjudged and incorporated into the separation agreement.

5.  On 6 September 2006, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel).  No spouse was entered on the form.  He listed a daughter with a date of birth of 8 April 1994.  He had indicated he elected SBP coverage for child(ren) only and indicated he had a spouse.  He elected coverage based on the full gross pay.

6.  DFAS sent a letter to his spouse, dated 12 September 2006, not the applicant, informing her of her rights and options under the SBP.  In a statement, dated 25 October 2006, the FSM's spouse requested the SBP election for full coverage for child(ren) only and no survivor coverage for spouse.

7.  On 31 October 2006, the FSM was retired and transferred to the Retired List the following day.

8.  On 26 January 2010, the FSM died.  On 2 April 2010, the FSM's daughter listed on his DD Form 2656 applied for an SBP annuity.  The daughter is currently receiving an SBP annuity from DFAS.

9.  References:

	a.  Title 10, U.S. Code, section 1447(11)(A) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  Marriage at any age will terminate a child's eligibility.  If former spouse and children coverage is elected, only those eligible children from the marriage between the member and the former spouse are covered.

	b.  Title 10, U.S. Code, section 1448(a)(3) states a married person who is eligible to provide a standard annuity may not without the concurrence of the person's spouse elect:

* not to participate in the SBP
* to provide an annuity for the person's spouse at less than the maximum level
* to provide an annuity for a dependent child but not for the person's spouse

	c.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 or as part of a proceeding of divorce.

	d.  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 contends she should be allowed to make a deemed election for former spouse SBP benefits.

2.  The applicant's contention of entitlement to former spouse coverage under the SBP was carefully considered.  However, while the applicant's argument has logic and appears to be supported by the divorce decree she provides, it is not the overriding principle in this case.  

3.  The applicant failed to make a deemed election for former spouse coverage within 1 year of her divorce.  

4.  It appears the FSM remarried after his divorce from the applicant.  At the time of his retirement from the Army he elected full SBP coverage for his daughter only, with the concurrence of his wife at that time.  Upon his death, his daughter filed for SBP benefits and began receiving payments in April 2010.

5.  The Board may not remove the payment of SBP from a legal beneficiary who is already receiving payments without an order from a State court of competent 

jurisdiction over the divorce proceedings of the applicant and the FSM.  That is, the Board cannot take the SBP from the FSM's daughter without violating her constitutional right to due process of law.  Therefore, this court action would have to include the current legal beneficiary receiving payments as a party in order to protect her property interest and rights.  

6.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can re-apply to this Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM's daughter irrevocably renouncing her right to the SBP annuity.  Regrettably, in view of the facts of this case, there is insufficient evidence that would warrant granting the relief requested at this time. 

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)                                         AR20100009589



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ABCMR Record of Proceedings (cont)                                         AR20100009589



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