IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100022968 


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 deceased former spouse, a former service member (FSM), be corrected to show she is the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states:

	a.  the FSM intended that she receive the death benefits he maintained insurance for;

	b.  the FSM did not know of his requirement to file or submit paperwork excluding his widow from the SBP; and

	c.  the FSM believed since she was his former spouse and the beneficiary of his military retired pay, she would receive death benefits as well.

3.  The applicant provides a property settlement (Order for Post-Divorce Division of Property) in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 20 September 1948.  He and the applicant were married on 24 January 1970.

2.  The FSM's military records show he enlisted in the Nebraska Army National Guard (NEARNG) on 1 March 1973 after having prior active duty and Reserve Component service in the U.S. Air Force.

3.  The FSM's official military personnel file (OMPF) contains a DD Form 2656 (Data for Payment of Retired Personnel), dated 9 April 1997.  It shows he elected to participate in the SBP for "spouse only" coverage, full gross amount without supplemental SBP.

4.  On 30 April 1997, the FSM retired from the NEARNG.  The National Guard Bureau Form 22 (Report of Separation and Record of Service) issued to him at that time shows he completed 29 years, 3 months, and 7 days of total creditable service.

5.  On 10 May 2000, the FSM and the applicant were divorced after having been married for 30 years, 3 months, and 17 days.

6.  On 30 June 2001, the FSM remarried.

7.  On 19 April 2010, the FSM died.  His death certificate lists his marital status at the time of death as "married."

8.  The applicant provides a Decree of Dissolution of Marriage, District Court of Lancaster County, Nebraska, dated 10 May 2000, wherein she is identified as the "Respondent" and the FSM is identified as the "Petitioner."  Page 2, paragraph 3, contains the statement, "The Respondent shall be entitled to half of the Petitioner's Military Retirement Benefits."  This document makes no reference to the FSM's SBP.

9.  During the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) to determine the applicant's entitlement to SBP coverage.  On 19 April 2011, a DFAS official confirmed that the FSM's widow submitted a copy of the FSM's death certificate and a DD Form 2656-7 (Verification for Survivor Annuity) to claim her entitlement to the FSM's SBP.

10.  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.

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.  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.

12.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf, provided the member agreed to provide coverage.

13.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

14.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.  By law, divorce courts may order SBP coverage (without the member's agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.  Incident to a proceeding of divorce, the former spouse can request a former spouse SBP coverage election be deemed to have been made within 1 year of the date of a court order of divorce.  However, there was no such court order to maintain the applicant as the FSM's beneficiary as his "former spouse" on his SBP.

2.  The evidence of record confirms the FSM and the applicant were divorced on 10 May 2000.  SBP coverage was not included in the original divorce decree and, therefore, no deemed election was made within 1 year of the divorce.  Upon the FSM's and applicant's divorce, the FSM had the option to change his SBP election of coverage from "spouse" to "former spouse" to show his intent to maintain the applicant the beneficiary of his SBP.  However, he did not take this action.

3.  In this case, the FSM remarried on 30 June 2001 and based on his initial SBP election for "spouse only" coverage, his wife at the time of his death (widow) is the beneficiary of his SBP.  Further, the FSM's DFAS record confirms his widow submitted her claim for SBP coverage shortly after his death.  Therefore, there is an insufficient evidentiary basis to support granting the applicant the requested relief in this case.

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)                                         AR20100022968



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ABCMR Record of Proceedings (cont)                                         AR20100022968



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