IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100010435 


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 that the Survivor Benefit Plan (SBP) election of her former husband, a former service member (FSM), be changed to former spouse coverage.

2.  The applicant states that she was married to the FSM for 40 years and should receive the SBP coverage.  She further states:

	a.  that her attorney had no military background and was unfamiliar with the SBP;

	b.  that the first divorce trial was a fiasco resulting in her former spouse threatening the judge, suing her attorney and losing, and ultimately moving the trial to a different county;

	c.  that within a year of the original divorce, her former spouse was found not in compliance with the court rulings and was charged with contempt of court;

	d.  that her former spouse was incarcerated at the time of the second divorce trial; and

	e.  that she is entitled to the SBP because they were married during his entire military career, they had agreed she was to receive the SBP, she had given up her career as a nurse, and she is presently receiving 50 percent of his military retirement.

3.  The applicant further argues that if the election is not changed, her former husband's current wife will receive the SBP for which she has been paying the premiums since he retired.  It is not right for her to pay for a benefit that will go to another person.

4.  On 25 October 2010, the applicant further stated in a telephonic conversation that her former spouse had remarried more than 1 year ago.

5.  The applicant provides a letter from the Department of the Army Office of the Deputy Chief of Staff, G-1, Washington, DC, dated 5 January 2010; Final Judgment and Decree, dated 22 August 2005; Final Order on Contempt, dated 21 March 2006; DD Form 2293 (Application for Former Spouse Payments from Retired Pay) with enclosures, dated 13 September 2005; letter from the Defense Finance and Accounting Service (DFAS) with enclosures, dated 12 May 2006; memorandum from the Retirement Services Officer, Fort Sam Houston, Texas, dated 29 December 2009; and her military dependent identification card.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 16 May 1996, indicates the applicant was married to the FSM on 29 June 1963.  The FSM elected full SBP coverage for spouse only under option C to provide an immediate annuity beginning on the day after his death.

3.  A U.S. Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 27 July 2009, indicates the FSM initially enlisted in the U.S. Army Reserve on 8 April 1966.  He was retired effective 11 January 2001 in conjunction with attaining 60 years of age.

4.  The Final Judgment and Decree, dated 22 August 2005, granted the applicant and the FSM a total divorce.  This document is mute as to the SBP.

5.  A final Order on Contempt, dated 21 March 2006, modified the original divorce action, dated 22 August 2005.  It required that the FSM provide the survivor benefits that were then currently associated with the U.S. military retirement.  Costs were to be equally deducted from both parties.

6.  A DD Form 2293, dated 13 September 2005, indicates the applicant requested to receive her portion of the FSM's retired pay.

7.  A letter from DFAS, dated 12 May 2006, informed the applicant that she had to make a deemed election within 1 year of the divorce and provided her with a point of contact if she had any questions.

8.  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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

9.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.

11.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows the FSM is required by the terms of the divorce decree to maintain SBP for the applicant.  The cost of this benefit is to be shared equally between them.  The applicant indicates that she has been paying for the SBP from her portion of the FSM's retired pay.  However, neither the FSM nor the applicant has changed the election from spouse to former spouse within the required time period.

2.  The applicant states the FSM remarried more than a year ago.  Accordingly, the SBP has been automatically vested with the current spouse.  The ABCMR may not terminate the current spouse's interest without due process of law.  Should the current spouse agree in writing to relinquish her entitlement to the SBP, then the applicant may submit another application for consideration.

3.  Alternatively, the applicant needs an order from a court of competent jurisdiction, in a lawsuit that joins the current spouse as a party, deeming the applicant as the party with the superior interest in the SBP.  If the applicant gets the current spouse's consent or this court order, she can reapply to the ABCMR for relief.

4.  In view of the above the applicant's request should be denied.

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)                                         AR20100010435



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010435



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1