IN THE CASE OF:
BOARD DATE: 2 December 2010
DOCKET NUMBER: AR20100011136
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, in effect, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).
2. The applicant states, in effect, the following:
* Unaware of the timeline for filing (deemed election)
* No timeline listed in divorce decree
* Attorney died before papers were complete
* Married throughout his entire military career
3. The applicant provides a copy of the following documents:
* Final Decree of Divorce
* Copy of Certificate of Marriage
* Certificate of Death
CONSIDERATION OF EVIDENCE:
1. The FSMs military service records show that he enlisted in the U.S. Army on
21 January 1971. The applicant and FSM married on 12 October 1967.
2. The FSM retired from the Army on 31 January 1991, after serving honorably on active duty for a total of 20 years and 19 days.
3. The FSM's record contains a copy of a DA Form 4240 (Data for Payment of Retired Army Personnel), signed and witnessed on 15 February 1991, which shows in part V (SBP Election), item 15 that he declined SBP coverage for his spouse and minor children. The applicant failed to sign the form indicating she concurred with his election.
4. The applicants Final Decree of Divorce, dated 14 April 1992, shows the following:
* Paragraph 21 - Defendant may qualify for military benefits such as military ID (identification card), Commissary/PX privileges, SBP protection
* Paragraph 24 - Defendant entitled to 37.5 percent of FSM's military retirement pay
* Item F - FSM shall not engage in any acts to prevent the former spouse and minor from receiving the military benefits for which they qualify
* Date of divorce - 11 June 1992
5. The FSM died on 25 September 2009. Item 19a (Informant's Name) and item 19b (Relationship to Deceased) lists P-----a P----z as his spouse.
6. On 10 November 2010, a staff member at the Defense Finance and Accounting Service (DFAS) verified that according to their records the applicant had spousal coverage from his retirement to his death. The annuity is now going to his surviving spouse.
7. 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.
8. 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. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.
9. Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
10. 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's contention that she should be designated as the annuitant of her deceased former spouses SBP was carefully considered.
2. Though the FSM attempted to decline SBP it appears his coverage defaulted to spouse coverage either for lack of a spousal concurrence or because he failed to make an election prior to his date of retirement. DFAS records indicate the FSM had spousal coverage from retirement to death. An annuity is being paid to his widow and she cannot be deprived of her interest without due process.
3. In the absence of evidence that the FSM ever elected former spouse coverage under the SBP, there is no basis to now designate the applicant as the recipient of said benefits. Further, there is no evidence the applicant ever made a deemed election request and the divorce itself is ambiguous as to the award.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100011136
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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The applicant states that it appears that SBP payments are being made to the FSM’s second wife and that, in view of her Judgment for Absolute Divorce, she should be receiving the payments. The FSM and the applicant divorced on 13 December 1984. 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.
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