IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100013171 


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, correction of her former spouse's records to show she made a deemed election under the Survivor Benefit Plan (SBP) within 1 year of their divorce.

2.  The applicant states, in effect, that her divorce decree from the former service member (FSM) entitled her to 17.5 percent of his retired gross monthly pay with cost of living adjustments and SBP benefits for herself and their minor child.

3.  The applicant provides the following documentary evidence in support of her application:

	a.  DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), dated 11 December 2009;

	b.  multiple legal documents to include a divorce decree, dated 9 February 1999;

	c.  a birth certificate of child born in 1994;

	d.  the FSM's death certificate; and

	e.  multiple bank records.



CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 16 April 1974.  He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist).  He served continuously on active duty.  The highest rank he attained was staff sergeant/pay grade E-6.

3.  The applicant married the FSM on 22 May 1985.

4.  On 13 May 1992 in preparation for his retirement, the FSM elected SBP spouse-only coverage as shown in item 12 (Beneficiaries for Final Retired Pay) of his DA Form 4240 (Data for Payment of Retired Army Personnel).

5.  On 30 June 1992, the FSM retired from the U.S. Army due to sufficient length of service.

6.  In 1994, the applicant and FSM had a child.

7.  On 9 February 1999, the FSM and the applicant were divorced.  The divorce decree states, "The husband shall continue the survivor's benefit plan in full force and effect."  Additionally, the FSM agreed to provide his former spouse with 17.5 percent of his gross retired pay from his service in the U.S. Army.

8.  On 10 March 2000, the FSM remarried in the State of Texas.

9.  On 9 November 2009, the FSM died.  His death certificate shows he had a surviving spouse named M____ E____ T____.

10.  In response to an inquiry from the staff of the ABCMR, the Defense Finance and Accounting Service (DFAS) stated no divorce decree was filed in the FSM's finance record.  His finance record did show he filed for SBP for spouse-only coverage on 1 July 1992 and that he continued his payments until his death.

11.  References:

	a.  Public Law 92-425, 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.

	b.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

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

	d.  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.

	e.  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 1 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.

	f.  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.

	g.  Title 10, U.S. Code, section 1447, defines the term "widow" as the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least 1 year immediately before his death.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the FSM was retired due to sufficient length of service in 1992.  In 1999, the FSM and applicant divorced with the divorce decree stipulating that the FSM was to continue his SBP in full force and effect.  On 10 March 2000, the FSM remarried.

2.  It is recognized that the divorce decree required the FSM to maintain his SBP coverage in full force.  However, based on the evidence of record, the FSM did not make a request for a change of his beneficiary to former spouse SBP within 1 year of the divorce settlement to DFAS and the applicant did not make a deemed election request within 1 year of divorce.

3.  The evidence shows the FSM remarried more than 1 year before his death.  The Board may not divest the current spouse's interest in the FSM's SBP without an order from a State court of competent jurisdiction over the marriage of the former spouse and applicant.  This court action would have to include the widow as a party in order to protect her property interests and rights.  As an alternative, the Board would also reconsider this decision if the FSM's widow waived her interest in the SBP for the benefit of the former spouse by notarized affidavit.

4.  In view of the facts of this case, regrettably, 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 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)                                         AR20100013171



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ABCMR Record of Proceedings (cont)                                         AR20100013171



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