IN THE CASE OF:
BOARD DATE: 1 February 2011
DOCKET NUMBER: AR20100020192
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, entitlement to the Survivor Benefit Plan (SBP) annuity based on the death of her former husband, a former service member (FSM).
2. The applicant states she was unaware of the requirement for refiling due to the mental stress caused by the FSM burning down her house with their child still in it.
3. The applicant provides her marriage certificate and divorce decree.
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he was born on 26 March 1941 and enlisted in the Regular Army on 31 October 1958. He married the applicant on 23 January 1963.
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 major (SGM)/E-9.
3. On 1 June 1979, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated 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 30 June 1979 and was placed on the Retired List in the rank/grade of SGM/E-9 on 1 July 1979. He was credited with completing 20 years and 8 months of faithful honorable active service.
5. On 17 July 1987, the FSM and the applicant entered into a settlement agreement wherein the FSM agreed to continue to maintain the applicant as a named beneficiary/survivor under the military retirement program so that if he predeceased the applicant, and if the applicant is not remarried at that time, the applicant would receive survival benefits under the FSM's military retirement program until such time as the applicant's death or remarriage, whichever occurs first.
6. On 12 April 1989, the court incorporated their settlement agreement into their divorce decree and granted the applicant a divorce from the FSM.
7. There is no indication the FSM notified DFAS within 1 year of their divorce to change his coverage to former spouse coverage or that the applicant made a deemed election within 1 year of the divorce.
8. The FSM's records at DFAS show the FSM married P____. The date of remarriage cannot be determined. However, his DFAS pay records show he had spouse SBP coverage on 1 May 1991.
9. On 8 August 2010, the FSM died. His death certificate shows he was married to P____ at the time of his death.
10. On 1 October 2010, DFAS established an annuity for the FSM's spouse at the time of death (P____).
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 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.
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 is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM elected to participate in the SBP for spouse and children coverage at the time of his retirement in 1979. He and his spouse, the applicant, were divorced in April 1989. The divorce decree stipulated the FSM would continue to name the applicant as the beneficiary of his SBP annuity. However, the FSM did not make a former spouse election within 1 year of the divorce as required by law and the applicant did not request a deemed election, also required to be made within 1 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 death, any SBP benefits would be paid to the beneficiary in effect at the time of death (his current spouse, not his former spouse) if they had been married for at least 1 year.
3. The ABCMR may not correct the FSM'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 his current widow renouncing any interest in the SBP annuity or a court order divesting her of her interest effective no later than the day prior to the FSM's death.
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) AR20100020192
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ABCMR Record of Proceedings (cont) AR20100020192
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