IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011165 


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, in effect, that the records of her former spouse, a deceased former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

* It was never brought to her attention until now that she had to change the SBP election from spouse to former spouse
* As far as she knew the Defense Finance and Accounting Service (DFAS) got a copy of the divorce decree which shows she was supposed to be the SBP beneficiary
* The FSM was paying for her to receive the SBP annuity
* Two days before the FSM died he talked to their sons about his will and he told them that his civil service retirement and his Virginia Army National Guard retirement was left to her
* She was married to the FSM for almost 33 years
* According to DFAS neither he nor anyone else changed the SBP election from spouse to former spouse  

3.  The applicant provides:

* FSM's death certificate
* Military Pension Division Order


CONSIDERATION OF EVIDENCE:

1.  The FSM served in the U.S. Navy from 14 July 1960 to 27 September 1963.  He and the applicant married on 12 October 1963.  The FSM enlisted in the Army National Guard on 24 October 1963.  

2.  The FSM’s DA Form 1883 (SBP Election Certificate), dated 27 February 1981, shows he enrolled in the SBP for spouse and children coverage, full base amount.

3.  The FSM was honorably discharged from the Army National Guard on 24 May 1984 and transferred to the U.S. Army Reserve Control Group (Retired).  He enlisted in the Army National Guard on 9 April 1986 and was honorably discharged on 20 April 1991. 

4.  The FSM and the applicant divorced on 18 July 1996.  The Military Pension Division Order, dated 18 February 2003, states that the FSM shall elect to make the applicant sole primary beneficiary of the SBP.

5.  The FSM remarried on 7 September 2002.

6.  On 8 September 2009, the FSM died.  His death certificate shows that he was married to C--- A----. 

7.  Records at the Defense Finance and Accounting Service show no one is receiving the SBP annuity.
  
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.  Elections are made by category, not by name. 

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

10.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

11.  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.

12.  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’s contentions were noted.  However, SBP elections are made by category, not by name.  As long as she was the FSM’s wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

2.  There is no evidence to show that the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory one-year time limit.  

3.  There is evidence to show the FSM remarried on 7 September 2002.  At the one-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.     

4.  The ABCMR may not act to terminate her rights in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s widow of a property interest without due process of law.  The ABCMR would only be empowered to correct the FSM’s records to grant the applicant a SBP annuity under one of two circumstances:

   a.  The FSM’s spouse executes a signed notarized affidavit relinquishing her rights in the SBP annuity in favor of the applicant.  

   b.  The applicant obtains an order from a State Court of competent jurisdiction, in an action joining the FSM’s widow as a party, declaring that the applicant is the rightful beneficiary of the FSM’s SBP annuity.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s widow or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant.  

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)                                         AR20100011165





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ABCMR Record of Proceedings (cont)                                         AR20100011165



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