IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100018306 


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 deceased former spouse, a former service member (FSM), be corrected to show he elected her as his former spouse to be the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states she was granted 45 percent of the FSM's retired pay in their divorce settlement and the Qualified Domestic Relations Order (QDRO) required her share to be placed in a separate single life annuity for her life time.  She goes on to state that in 1994 the Army accepted that court order and acknowledged that she had a separate single life annuity based on her life.  Now 16 years later upon the FSM's death, the Army indicates it is taking the annuity away or terminating it.

3.  The applicant provides copies of:

* her QDRO and a certified mail receipt showing that the Defense Finance and Accounting Service (DFAS) received the QDRO in November 1993
* a letter from DFAS acknowledging that the court order would be honored and that her payments would commence on or about 5 February 1994

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request be honored and that her benefits be restored in accordance with the court order.

2.  Counsel states she believes the mistake is that the FSM remarried and he made arrangements to benefit his new wife from his 55 percent of his retired pay benefits.  However, any decisions he made did not and do not affect the applicant's benefits or her 45-percent share of the FSM's retired pay benefits which were to continue throughout her lifetime.  Accordingly, her benefits should not have been terminated.

3.  Counsel provides a two-page letter explaining her position.

CONSIDERATION OF EVIDENCE:

1.  The FSM married the applicant on 12 September 1972 and enlisted in the Regular Army on 19 September 1972.

2.  He continued to serve through a series of reenlistments and was promoted to pay grade E-8 on 1 January 1990.

3.  On 30 June 1993, the applicant was retired and was transferred to the Retired List effective 1 July 1993.

4.  On 17 November 1993, the applicant was granted a divorce from the FSM in Jackson County, Ohio.  The court order directed that the applicant receive 45 percent of the applicant's Army retired pay benefits.  However, the order arguably does not contain any specific language directing the FSM to enroll the applicant in the SBP for former spouse coverage, though it can fairly be interpreted to have intended such a result.

5.  The FSM remarried and made an SBP election for his new spouse.  That election was in effect when he passed away on 1 June 2010.  His current spouse is presently receiving his SBP annuity.

6.  In the processing of this case, a staff advisory opinion was obtained from DFAS which opines, in effect, that in regard to SBP, the applicant's court order was unenforceable because the language of the order did not specifically direct the FSM to elect SBP coverage for his former spouse.  Officials also opine that there was no deemed election on file and no enforceable order from which a deemed election might have been established.

7.  The advisory opinion was provided to the applicant's counsel for comment and to date no response has been received by the staff of the Board.  It is also noted that the applicant now has a different last name than the name she had when she divorced the FSM.

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.

9.  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.  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.

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 SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.

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

13.  Title 10, U.S. Code, section 1450(b)(2), provides that an SBP annuity to a surviving spouse terminates if that spouse remarries before age 55.  Title 10, U.S. Code, section 1450(b)(3), provides that the surviving spouse is entitled to resumption of the SBP annuity if the subsequent marriage is terminated by death, annulment, or divorce.  An SBP annuity does not terminate if the surviving spouse remarries after age 55.  Title 10, U.S. Code, section 1450(b)(1), provides that an SBP annuity terminates the first day of the month in which the annuitant remarries.

DISCUSSION AND CONCLUSIONS:

1.  Incident to a proceeding of divorce a member has 1 year to provide an annuity to a former spouse by making such an election by law.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce.  There is no evidence in this case of either the applicant or the FSM making such an election.

2.  After reviewing the court order in this case, it appears DFAS officials are correct in their assessment that the order does not specifically direct the FSM to enroll the applicant in SBP.  Though perhaps fairly encompassed by the order and even if the DFAS assessment is incorrect, the larger issue is that the FSM died with a spouse election in place and was married at the time.

3.  It should also be noted that in order for the Board to award the applicant the FSM's SBP benefits, the current recipient (FSM's spouse at the time of his death) would have to agree to forfeit her entitlement beginning on the date of the FSM's death and the applicant would have to be unmarried up to the age of 55.

4.  While the applicant does not indicate whether she has since remarried, it should be noted that she would not be eligible for an SBP annuity under the law if she remarried before reaching age 55.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

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)                                         AR20100018306



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ABCMR Record of Proceedings (cont)                                         AR20100018306



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