IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100017236 


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 the records of her deceased former husband, a former service member (FSM), be corrected to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity and life insurance policy.

2.  The applicant states payments were made to the plan from 1987 to 1994.  Their divorce decree recognized the payment of survivor benefits as a deduction from gross retirement pay and stipulated that these benefits would continue to name her and her child as beneficiaries.  It also stipulated the life insurance policy would remain in effect.  It was not until her former husband's death that she became aware of her entitlement to SBP benefits.  She also learned that her former husband stopped paying into the plan in 1994 which is a violation of their divorce decree.

3.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS)
* FSM's retiree letter
* FSM's Death Certificate
* Divorce Decree

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he enlisted in the Regular Army on 17 April 1967 and held military occupational specialty 31M (Multichannel Communications Specialist).  He and Doris, the applicant, were married on 2 December 1967.
2.  He served through several reenlistments, in various staff and leadership positions within and outside continental United States, and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 17 March 1987, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married and had dependent children.  He elected spouse and dependent children SBP coverage based on the full amount.

4.  He was honorably retired on 31 May 1987 and was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 June 1987.  He was credited with completing 20 years, 1 month, and 15 days of faithful honorable active service.

5.  On 3 April 1990, the FSM and the applicant entered into a settlement agreement wherein the FSM agreed to pay the applicant alimony equal to 100% of his net Army retirement proceeds for a period of 4 years and 50% subsequently until death.  The gross amount would be reduced by payment of life insurance, a loan, a bond, taxes, and survivor benefits.  In addition, the survivor benefits from the FSM's retirement would continue to name "wife and child." 

6.  On 4 April 1990, the court incorporated their settlement agreement into their divorce decree and granted the applicant a divorce from the FSM.

7.  There is no indication that the FSM notified DFAS within one year of their divorce to change his coverage to former spouse coverage or that the applicant made a deemed election within one year of the divorce.  

8.  The FSM's records at DFAS show the FSM married Dawana on 16 December 1995.  There is no indication in his pay records that shows he divorced Dawana. 

9.  On 6 January 2010, the FSM died.  His death certificate shows he was married to Dawana at the time of death.

10.  On 8 January 2010, by letter, DFAS notified the applicant that her payment under the Uniformed Services Former Spouses' protection Act from the FSM's retired pay was terminated.  No further payments would be made due to the FSM's death.

11.  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.


12.  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.

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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time of his retirement in 1987, the FSM elected to participate in the SBP for spouse and children coverage.  Years later, he and his spouse, the applicant, were divorced in April 1990.  The divorce decree ordered that the FSM would pay alimony and that survivor benefits from his retired pay would continue to name "wife and child."  However, the FSM did not make a former spouse election within one year of the divorce as required by law and the applicant did not request a deemed election, also required to be made within one year of her divorce from the FSM.

2.  Furthermore, the FSM remarried.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of the FSM's death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least one year. 

3.  The ABCMR may not correct the applicant's records to effectively change his election to former spouse, for so doing would deprive his current widow of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from this current widow renouncing any interest in the SBP annuity.  

4.  With respect to the life insurance policy, it is unclear if the applicant refers to active duty SGLI (Servicemember's Group Life Insurance), retirees' VGLI (Veterans' Group Life Insurance) (VGLI is a program of post-separation insurance which allows servicemembers to convert their SGLI coverage to renewable term insurance upon release from service), or a commercial insurance policy.  Regardless of the type of insurance, this issue is not within the purview of this Board and should be addressed with the appropriate agency.

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)                                         AR20100017236



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ABCMR Record of Proceedings (cont)                                         AR20100017236



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