BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100012118 


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, as the former spouse of a deceased former service member (FSM) that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).   

2.  The applicant states, in effect, their final judgment decree granted her coverage under the SBP as a former spouse and the FSM's election is incorporated in that order.

3.  She provides:

* FSM's Birth Certificate and her Birth Certificate
* Certificate of Marriage and License
* Children's birth certificates (2)
* Final Judgment and Decree
* Letter to a Member of Congress
* Child Support Papers
* FSM's Death Certificate
* Letter from the Defense Finance and Accounting Service (DFAS)

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he enlisted in the Regular Army on 27 April 1979.  

2.  The applicant provided a Certificate of Marriage and License which shows she and the FSM were married on 11 October 1980.  She also provided the birth certificates of their children.  

3.  The FSM's record contains a DD Form 2656 (Data for Payment of Retired Personnel), signed and witnessed on 5 June 1996, which shows in Section VII (SBP Election) that he elected coverage for spouse and children.  The applicant's name is shown in Section VI (Dependency Information), item 22 (Spouse Name).

4.  The FSM retired on 31 July 1996.

5.  The applicant’s Final Judgment and Decree, dated 8 August 1996, stipulated the following:

     a.  Retirement Benefits - The Wife (applicant) shall have at her election, under the SBP, all rights and entitlement to all survivor annuity payments as the former spouse of Husband (FSM), and Husband shall sign, now and in the future, promptly all necessary elections or other forms to assure her entitlement and payment to her of any annuity payments under the SBP and his election is incorporated into this Order.  

     b.  The Husband will designate and maintain Wife as the beneficiary of all survivor and death benefits under the SBP to the extent of Wife's interest in the plan as provided in this Orders.  The Husband will perform all acts necessary to ensure payments of such benefits to Wife and will perform no act that would adversely affect Wife's interest in such benefits.

     c.  The Husband will not make any election or take any other action that may adversely affect Wife's rights with respect to benefits under the plan without the prior written consent of Wife and specific authorization by prior Court order on noticed motion.

     d.  Husband will notify the plan administration that any such election or action requires prior written consent or Court Order, instruct the plan administrator to notify the Wife of any such election or action, and obtain and deliver to Wife written acknowledged by the plan of receipt of the notification and instruction.

6.  The applicant further provided a Final Judgment and Decree which was filed on 8 August 1996.  The judgment for divorce shows the FSM agreed, in effect, to provide his now former spouse an annuity under the SBP.   

7.  The FSM died on 30 January 2010.  Item 10 (Martial Status) and Item 10 (Surviving Spouse) of his death certificate lists the FSM's status as married and L _ _ _ _ _ _ J _ _ _ _ _ as his spouse.

8.  In a letter, date 13 February 2010, the applicant was notified of termination of SBP payment from the FSM's retired pay due to his death.

9.  On 21 September 2010, a staff member of DFAS verified the FSM's original SBP election was for spouse and child and currently for child only effective 2 August 1996.  He divorced the applicant on 2 August 1996 which suspended spousal coverage.  The youngest child's birth date on record was 3 October 1988.  There is no evidence a deemed election was filed for the SBP within         1 year of the date of the Court Order. 

10.  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.

11.  Public Law 94-496, dated 14 October 1976, but effective 1 October 1976, reduced the waiting period of new spouse's eligibility to 1 year following post-retirement marriage.

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.  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 the FSM's SBP was carefully considered.

2.  The evidence of record shows the FSM elected SBP coverage for spouse and children prior to his retirement.  He was honorably retired on 31 July 1996.  The FSM and the applicant were divorced on 2 August 1996, suspending SBP spousal 
coverage.  The records also do not indicate an annuity is being paid to his widow; however, she cannot be deprived of her interest without due process. 
3.  In the absence of evidence that the FSM 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.  DFAS records do not indicate the FSM informed DFAS he had remarried.

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)                                         AR20100012118



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ABCMR Record of Proceedings (cont)                                         AR20100012118



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