IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100020985 


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 husband, a deceased former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage within 1 year of their divorce and that she is entitled to an SBP annuity based on his death.

2.  The applicant states she was denied SBP benefits because his change of election form never made it into his records.  She was married to the FSM for 
46 years, concurrent with his military service.  She is unsure why the FSM did not submit the required form within 1 year of their divorce.  He was adamant that his second spouse should not receive the SBP benefit.  His second spouse even agreed with the FSM's decision and made that clear in her signed statement on 28 January 2010.  

3.  The applicant provides:

* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* Statement from the FSM's widow
* DD Form 2656-7 (Verification for Survivor Annuity)
* Direct Deposit Form
* W-4P (Withholding Certificate for Pension or Annuity Payment)
* FSM's Certificate of Death
* Certificate of Marriage
* Final Decree of Divorce


CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 16 January 1925.

2.  Having had prior service in the U.S. Navy, the FSM's records also show he enlisted in the Regular Army on 30 June 1948.  He and Frieda, the applicant, were married on 15 May 1952.

3.  He held military occupational specialty 12B (Combat Engineer), and he served through multiple reenlistments and/or extensions within and outside of continental United States.  He attained the rank/grade of master sergeant (MSG)/E-8.

4.  The FSM's records further show he was retired from active duty on 30 June 1966 and he was placed on the Retired List on 1 July 1966.  He was credited with over 20 years and 6 months of active military service.

5.  According to his pay records at the Defense Finance and Accounting Service, he elected spouse SBP coverage based on the full amount.

6.  On 16 September 1998, the FSM and the applicant were divorced.  The Final Decree of Divorce, issued by the 166th Judicial District Court, Bexar County, TX, states that "Respondent (Frieda) shall receive one half of Petitioner's (FSM) taxable military retirement receive from the U.S. Government, such that the Respondent shall continue to receive monthly survivor's military retirement benefits and such survivor's benefits shall survive the death of the Petitioner and shall become a debt of the Petitioner's Estate in the event of death." 

7.  There is no indication that the FSM changed his SBP coverage from "spouse" to "former spouse" coverage.

8.  On 16 June 2003, the FSM married Rose.

9.  On 25 November 2009, the FSM died.  His death certificate shows he was married to Rose at the time of death.  Additionally, his pay records indicate he continued to pay SBP premiums until the date of death.

10.  On 18 March 2010, DFAS established an SBP annuity for Rose, effective the day after his death. 




11.  The applicant submitted: 

	a.  DD Form 2656-1, dated 25 September 2003, which shows the FSM elected former spouse coverage pursuant to the requirements of a court order.  He, his former spouse (the applicant) and two witnesses authenticated this form by placing their signatures in the appropriate place.  However, there is no indication DFAS processed this form as it was not submitted within 1 year of the FSM's divorce from the applicant. 

	b.  A signed (but not notarized) statement, dated 28 January 2010, from the FSM's widow, Rose, wherein she states the FSM made his wishes known to her. It was his intent that his SBP payments should go to his former spouse.  She requests the FSM's records be changed from spouse to former spouse so that the SBP payments will go to Frieda, the applicant, in accordance with the FSM's wishes. 

12.  On 28 January 2011, the analyst contacted the applicant regarding the signed, but not notarized, statement submitted by the FSM's widow.  The applicant's son, Mr. C----s R. J----r, telephone number (210) 8xx-8xxx, stated that the applicant was in the hospital and he was handling her application.  He stated he would contact the widow and obtain a notarized statement from her.  No statement was received as of 6 February 2011. 

13.  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.

14.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members to include Reserve members.

15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.




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 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be entitled to SBP benefits based on the death of her former husband.

2.  The evidence of record shows the FSM elected full SBP spouse coverage.  Furthermore, the applicant and the FSM were divorced on 16 September 1998 and their divorce decree stipulated the applicant would be, in effect, the designated beneficiary of his SBP.  There is no indication that the FSM submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.  

3.  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 widow, not his former spouse) if they had been married for at least 1 year.

4.  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 and notarized declaration from his current widow renouncing any interest in the SBP annuity or a court order divesting the current widow 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 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)                                         AR20100020985



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ABCMR Record of Proceedings (cont)                                         AR20100020985



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