IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100021340 


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, correction of the record of her deceased former spouse, a former service member (FSM), to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). 

2.  She states, in effect, that her divorce decree indicates she was to be named beneficiary of the FSM's SBP, but she was never informed of any forms she needed to submit after the divorce to ensure she was the SBP beneficiary.  She feels she should receive SBP payments because it was the only thing she asked for during the divorce.

3.  The applicant provides copies of:

* correspondence with the Army Review Boards Agency
* a divorce decree
* a death certificate 

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.  On 31 July 1975, the FSM honorably retired after completing 22 years, 7 months, and 6 days of total active service.

3.  On 9 April 1975, the FSM completed a DA Form 4240.  Part II (SBP Election) shows he declined SBP coverage.  With her signature, the applicant certified she had been fully informed and counseled concerning the options available under the SBP and that she understood the decision which had been made.  

4.  The divorce decree provided by the applicant, whose name is B---- J--- C------, shows she was divorced from the FSM on 12 January 1988.  The decree stated the FSM was to take all steps necessary to ensure she remained as the named beneficiary for SBP, provided doing so was in compliance with military regulations.

5.  In response to a request for confirmation of the FSM's SBP election, the Defense Finance and Accounting Service (DFAS) reviewed his account and found that on 1 September 1998 he changed his SBP election.  At the time of his death, his election was for spouse-only coverage, and S---- S. C------ is receiving the annuity.  DFAS records show no deemed election for former spouse coverage, but do show the applicant contacted the agency in 2000 to ask why she had been removed from the SBP.

6.  The death certificate she provides shows the FSM died on 21 May 2010.  He was married at the time and his surviving spouse's name (prior to her first marriage) was S---- S. R-----. 

7.  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.  Elections are made by category, not by name.  An election, once made, was irrevocable except in certain circumstances.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

9.  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.

10.  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.

11.  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 evidence of record does not support the applicant's request for correction of the FSM's records to show he elected former spouse SBP coverage.

2.  Although the DA Form 4240 in his record shows the FSM elected to decline SBP coverage when he retired, it appears that document may not represent his actual decision on SBP coverage.  

3.  The record shows he declined SBP coverage prior to retirement, but the fact that the divorce decree ordered him to maintain the applicant as the beneficiary indicates he had made an election for SBP coverage.  It is unlikely the court would have ordered the coverage without a basis for doing so.  Also, under the applicable statute the court could not order him to provide SBP coverage unless he had previously elected spouse coverage.  

4.  Assuming the court correctly applied the governing statute, the FSM had a year to notify DFAS to change his election to former spouse coverage.  The applicant also had a year to submit a request that former spouse coverage be deemed.  The record does not show that either party contacted DFAS within a year of the divorce decree.  

5.  DFAS records indicate the FSM made a change to his SBP coverage in 1998.  His widow is now receiving the annuity.

6.  Since the FSM died with spouse SBP coverage in effect, his widow is the lawful beneficiary of his SBP.  The ABCMR will not take any action that would cause the lawful beneficiary to be ineligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

7.  The ABCMR may not divest the FSM’s widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM’s widow as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, she can apply to the ABCMR for reconsideration.

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)                                         AR20100021340



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ABCMR Record of Proceedings (cont)                                         AR20100021340



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