IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100019083 


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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her former husband, a former service member (FSM). 

2.  The applicant states her divorce decree stipulated that she would receive all right, title, and interest in and as her equally-divided and equally-valued sole and separate property and estate: 50% of all military retirement benefits by virtue of her former husband's service in the Army, including any future increase in such payments and any survivorship retirement allowable by the law.  She was married to the FSM from 1954 to 1983.  She received "SBP" benefits (i.e., a portion of his retired pay) from 1983 to 1996.  She was married to him for           29 years.  As a wife and partner, she assisted in many services in the United States and abroad.  Her former husband died in 1996.  There was no military funeral.  His spouse at the time had him cremated and gave away his ashes.  The payments stopped one month later.  Prior to his death, the FSM assured her that his retirement, insurance, and pension would automatically go to her.  He told her everything was taken care of.  She feels she earned the retirement after having spent nearly 30 years by his side.  She raised the children before and after the divorce.  She has been trying to retrieve her former husband's pension for 14 years.  No one told her she had to submit her claim within one year of their divorce.  How would she know? 

3.  The applicant provides:

* Property Settlement Agreement
* FSM's Certificate of Death
* Unsigned temporary injunction
* Letter to a Major General (MG)
* Letter to the Army Board for Correction of Military Records (ABCMR)
* Letter to her attorney
* Letter from her attorney
* Utility schedule for a tax form
* Undated authenticated claim

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's records show he was born on 30 September 1922.  He was appointed as a second lieutenant in the Army and executed an oath of office on 13 February 1958.

3.  He entered active duty on 21 February 1958 and subsequently served in various staff and leadership positions within and outside of the continental United States.  He attained the rank of colonel (COL). 

4.  On 25 February 1980, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married to Jeanne, the applicant, and they had dependent children.  He further elected to decline SBP coverage.  Part X (SBP Certificate) of this form shows the following entry:  "I, the spouse of [FSM], have been fully informed and counseled concerning the options available under the Survivor Benefit Plan for a survivor annuity.  I understand the decision which has been made and it is reflected on the reverse of this certificate."  The form does not contain her signature and date; however, it contains the entry "Spouse not available for counseling; informed by letter dated 25 February 1980."  The block is authenticated by an official at Fort Hood, TX.  

5.  The FSM's records further show he was honorably retired on 29 February 1980 and he was placed on the retired list in his retired rank of COL on 1 March 1980.  He was credited with completing 22 years and 10 days of active service.

6.  On 3 October 1983, the applicant and the FSM entered into a property settlement agreement that was ultimately incorporated into their divorce decree.  Their agreement stipulated that the applicant would receive 50% of all military retirement benefits as well as commissary, post exchange, medical, and dental benefits by virtue of her marriage to the FSM in excess of 20 years.  Her 50% interest would include any future increases in such payments and any survivorship retirement under the law.  Additionally, the FSM was required to execute any necessary documents to implement payment of funds to the applicant.

7.  On 30 August 1991, the FSM married his second spouse, Rxxx.  

8.  On 1 April 1993, during the 1992/1993 Open Season, the FSM made an SBP election for spouse coverage. 

9.  On 19 June 1996, the FSM died.  His death certificate shows he was married to Rxxx at the time of death.

10.  The applicant submitted several letters with this application that show, subsequent to the FSM's death, she communicated with the following individuals/agencies:

	a.  Letter, dated 5 August 1996, addressed to a MG, Uniformed Services Journal, wherein she stated that she was never given the required documents within 12 months of her divorce.  Neither the FSM nor the military informed her of the 12-month rule.  

	b.  Letter, dated 6 August 1996, to the ABCMR, wherein she stated that she was entitled to 50% of his military benefits and survivorship retirement.  She further raised the issue of the Army's negligence in failing to inform her about her rights and the requirement to submit the necessary paperwork within 12 months of her divorce.  

	c.  Letter, dated 21 August 1996, to her attorney wherein she informed him that she had been notified by officials at the Defense Finance and Accounting Service (DFAS) that her "military retirement" was terminated on 1 July 1996 because the FSM did not follow the divorce decree which would have allowed her to receive the survivor pension.  

	d.  A utility schedule in support of a tax form, wherein she stated that she did not receive any W-2 forms pertaining to the monies her former spouse agreed to. 

	e.  A letter, dated 9 September 1996, from her attorney, wherein he advised her about the civil process for filing a claim regarding her settlement agreement with the FSM.  

	f.  An authenticated claim, dated 12 September 1996, wherein she filed a claim to the Temporary Administrator in relation to the property settlement agreement wherein she requested reimbursement of all survivorship benefits due as a result of the FSM's death which she then believed were being collected by the FSM's second spouse, Rxxx.

	g.  An undated temporary injunction from the District Court, Harris County, Houston, TX, regarding the spending by the FSM's second spouse, Rxxx, of any survivorship benefit payments received from the Federal Government as a result of the death of her former husband, the FSM.

11.  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.  An election, once made, was irrevocable except in certain circumstances

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

13.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  Insurable interest option was authorized for beneficiaries following divorce if previously covered under the “spouse” option.

14.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

15.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  
16.  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.

17.  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 contends the records of her deceased former husband should be corrected to show he timely changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree and that she be paid the SBP annuity based on his death.

2.  The evidence of record shows prior to his retirement in 1980, the FSM elected not to participate in the SBP.  There was no legal requirement for his spouse at the time to concur or not concur with this election.  The law only required the spouse to be informed.  In this case, a retirement services official certified that the spouse was informed by letter dated 25 February 1980.

3.  The applicant and the FSM were divorced in October 1983.  The divorce decree ordered that the FSM would pay a portion of his retired pay to the applicant.  The divorce also granted the applicant any survivorship retirement allowable by law.  However, since the FSM had not elected to participate in the SBP, there was no "survivorship retirement" to grant her.

4.  The FSM remarried in August 1991 and established a spouse SBP annuity during an Open Season in April 1993.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse.  She clearly was not the spouse the FSM intended to cover by virtue of his Open Season election.  Therefore, in the event of 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. 

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)                                         AR20100019083



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ABCMR Record of Proceedings (cont)                                         AR20100019083



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