IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100018848 


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, 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:

* The denial of survivor benefits for former spouse should be overturned
* All necessary requirements for her participation in the SBP were submitted as required
* The letter deeming election, dated 4 September 1998, was forwarded to the Defense Finance and Accounting Service (DFAS) with a certified copy of the divorce decree
* She never received any notification of additional documentation or information required for eligibility of survivor benefits nor notification of denial of the benefits
* She requested in her September 1998 letter that she be notified if additional information or documentation was required for deeming her election
* No additional correspondence was ever received from the Army requesting additional information or instructions to complete a specific form    



3.  The applicant provides:

* 8 attachments outlined in her 6 July 2010 letter
* Letter, dated 7 December 2010, from a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The FSM married the applicant on 1 October 1965.  Having prior active enlisted service in the U.S. Army Reserve (USAR), he was commissioned a second lieutenant in the USAR on 26 August 1966 and entered active duty.  He was released from active duty on 30 June 1975.  He subsequently served in the USAR and Army National Guard.  

2.  His DD Form 1883 (SBP Election Certificate), dated 10 October 1987, shows the FSM enrolled in the SBP for spouse coverage, full base amount.

3.  He was honorably discharged in the rank of lieutenant colonel from the Army National Guard on 1 January 1988 and transferred to the USAR Control Group (Retired).  

4.  He and the applicant divorced on 15 January 1998.  The Final Judgment and Decree of Divorce, dated 15 January 1998, states the applicant is entitled to the survivor annuity payments and that, if requested to do so by the Department of Defense Finance and Accounting Service, the FSM would cooperate and submit all election forms necessary to ensure the applicant's entitlement to payment under the SBP.

5.  He married (Deborah) on 20 April 2004.

6.  His DD Form 2656 (Data for Payment of Retired Personnel), dated 20 August 2004, shows he elected spouse coverage (for Deborah), full base amount.  

7.  He was placed on the Retired List on 3 November 2004.   

8.  On 27 April 2010, the FSM died.  His death certificate shows that he was married to Deborah. 

9.  In support of her claim, the applicant provided a letter, dated 4 September 1998, she sent to DFAS requesting a deemed election for former spouse coverage.  However, she also provided a letter, dated 2 July 2010, from DFAS which states, in pertinent part, "Our records indicate you did not make a 'deemed election' of your Survivor Benefits within the 1 year mandantory [sic] time frame of your divorce." 
10.  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. 

11.  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.

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

13.  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.

14.  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 the FSM requested his SBP coverage be changed to former spouse coverage.  Though the applicant states she made a request for a deemed election within the statutory 1-year time limit, no such document appears in DFAS records.  

3.  There is evidence to show the FSM remarried on 20 April 2004.  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.  However, if the applicant were able to submit a certified mail receipt or return receipt that locked down the timeliness of her deemed election request, she may request reconsideration.  Otherwise, she would have to provide a signed and notarized affidavit from the FSM's widow relinquishing her rights in the SBP in favor of her or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's widow as a party, declaring the she 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)                                         AR20100018848





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ABCMR Record of Proceedings (cont)                                         AR20100018848



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