BOARD DATE:	   3 May 2011

		DOCKET NUMBER:  AR20100022187 


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

2.  She states the FSM died prior to a scheduled court hearing on asset distribution.  A letter from his lawyer indicates he intended to change his SBP election to former spouse coverage.

3.  She provides copies of the following documents:

* a self-authored statement
* a letter from the FSM's attorney to her attorney
* a court order declaring the existence of an emergency and granting an immediate divorce
* court memoranda pertaining to the division of marital assets and spousal maintenance
* a death certificate
* correspondence between her and the Defense Finance and Accounting Service (DFAS)
* a letter to DFAS in support of her claim authored by the Director, Retired Activities Office, Marine Corps Air Station Cherry Point, NC
* social security cards, a Medicare card, and a U.S. Uniformed Services Identification and Privilege Card


CONSIDERATION OF EVIDENCE:

1.  The FSM, Major D----- T. D-----, retired on 31 May 1976 after 20 years, 1 month, and 3 days of total active service.  

2.  On 9 April 1975, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  Part II (Survivor Benefit Plan Election) shows he elected spouse-only SBP coverage based on a reduced portion of retired pay.  The form shows his spouse at the time was A-------- T. D-----.

3.  The applicant provides a court order declaring the existence of an emergency and granting an immediate divorce.  This document shows she and the FSM were married on 4 June 1994 and divorced on 23 March 2007.  The court reserved for subsequent adjudication all property and financial matters.   

4.  Two court memoranda, dated 13 June and 10 October 2007, addressed property and financial matters.  The memoranda are silent on the subject of SBP.  

	a.  The earlier memorandum shows 

* the FSM's marriage to the applicant was his fourth marriage 
* the court ordered the FSM to pay spousal maintenance for a period of 5 years and 3 months
* the court recognized the FSM was in poor health
* the court determined it was not appropriate to secure future maintenance payments through life insurance or a lien on the FSM's assets

	b.  The later memorandum shows the FSM filed a motion for amendment of judgment or relief from judgment, which resulted in the court reducing the duration of his obligation to pay spousal maintenance from 5.25 years to 4.25 years.  

5.  The record is void of documentation showing he had any outstanding obligations resulting from his three previous divorces.

6.  In a letter to the applicant's attorney dated 19 December 2007, the FSM's attorney stated the FSM had authorized him to offer a settlement.  The FSM proposed the applicant accept designation as the beneficiary of two survivor's benefit plans--one through the military and one through civil service--as full satisfaction of his obligation to pay maintenance.  The offer was contingent on designation of the applicant as beneficiary prior to the FSM's death.

7.  In a letter dated 21 December 2007, the applicant's attorney informed her of the settlement offer and that a hearing had been set for 25 January 2008.

8.  The record is void of documentation showing the applicant intended to accept the FSM's settlement offer at the time.

9.  The death certificate provided by the applicant shows the FSM died on 17 January 2008 and was divorced at the time of his death.  

10.  On 9 April 2008, the applicant sent a letter to DFAS requesting a deemed election for former spouse SBP coverage.  Subsequent correspondence with DFAS indicates she did not immediately receive a definitive response to her request.

11.  On 17 June 2010, DFAS informed her that a request for former spouse coverage under the SBP needed to be submitted by 23 March 2008, one year from the effective date of the divorce.  The letter stated DFAS records did not show a request from her or the FSM within a year of the divorce.  Therefore, she was no longer the eligible SBP beneficiary.  

12.  During the processing of this case, DFAS reviewed the FSM's record and found Mrs. C--- W--- D----- is currently listed as his SBP beneficiary.  DFAS records show they were married on 4 June 1994.

13.  In her self-authored statement, the applicant indicates she has been known by the following names:

* L------ C--- W---
* L------ W--- D-----
* L------ W. D-----
* L------ C. D-----

These names are confirmed by her social security cards, Medicare card, and U.S. Uniformed Services Identification and Privilege Card.  The cards show her social security number (SSN) is xxx-xx-xxx2.

14.  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.

15.  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.  The USFSPA contains strict jurisdictional requirements.  The State court must have personal jurisdiction over the FSM by virtue of the FSM’s residence in the state (other than pursuant to military orders), domicile in the State, or consent.

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

2.  The evidence clearly shows the FSM did not intend to elect former spouse SBP coverage unless he was relieved of his responsibility to pay spousal maintenance.  Unfortunately, he died before a court could hear the matter.  

3.  After the FSM's death, the applicant submitted a request to DFAS for a deemed election for former spouse coverage.  Although DFAS informed her she had submitted her request too late, the evidence shows that, regardless of when the request was submitted, in the absence of a court order, DFAS had no basis for approving her request.

4.  In the absence of documentary evidence showing the FSM made or attempted to make a timely election for former spouse SBP coverage or that a court with proper jurisdiction ordered him to provide such coverage prior to his death, there is insufficient basis for granting the requested relief.  

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)                                         AR20100022187





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022187



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1