BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100023708 


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 that former spouse entitlement for the Survivor Benefit Plan (SBP) of her deceased ex-husband, a former service member (FSM), be deemed per her original request, dated 13 July 2010.

2.  The applicant states she was unaware the former spouse election was not recorded with the Defense Finance and Accounting Service (DFAS) until she applied for SBP.

3.  The applicant provides the documents identified on the Army and Air Force Mutual Aid Association letter included with this application in support of her request.

CONSIDERATION OF EVIDENCE:

1.  On 4 May 1972, the applicant and FSM were married.

2.  On 20 April 1994 during his retirement processing, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he elected full "spouse only" coverage.  The applicant was listed as his spouse.

3.  On 24 May 1994, the applicant and FSM entered into a separation agreement.  This agreement indicated the applicant would be designated as beneficiary of the SBP so long as she did not initiate an action for divorce.

4.  The FSM's record shows he was honorably retired in the rank of major/O-4 on 31 May 1994 after completing a total of 20 years, 4 months, and 5 days of active military service.

5.  An amendment to the separation agreement, dated 9 September 1996,  changed the SBP language of the separation agreement to read "wife shall remain designated as beneficiary of the SBP after the parties divorce."

6.  On 30 October 1996, a divorce decree issued by the Superior Court, County of Clayton, State of Georgia, approved the terms of the 24 May 1994 separation agreement, as amended on 9 September 1996, and incorporated them into the final judgment and decree of divorce.

7.  The record is void of any indication the FSM complied with the divorce decree to maintain SBP coverage for the applicant as "former spouse" and there is no indication the applicant requested a deemed election for SBP coverage within 1 year of the divorce.

8.  On 25 April 2010, the FSM died.  DFAS records show the FSM's SBP coverage designation at the time of his death was still "spouse only" and the FSM's widow is now the legal beneficiary of the SBP annuity.

9.  The applicant provides a letter she indicates is from the FSM's spouse at the time of his death.  In this letter, the spouse indicates she is the FSM's widow and that she is aware the applicant is applying for the SBP annuity of her late husband.  She further indicates that according to the separation agreement and divorce decree between her late husband and the applicant, the applicant is to be the beneficiary of his SBP.  This letter is not notarized and the FSM's spouse does not formally waive her legal right to the SBP annuity based on the "spouse only" election in force at the time of the FSM's death.

10.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.  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.  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.  The applicant's contention of entitlement to "former spouse" coverage under the SBP was carefully considered.  However, while the applicant's argument has logic and appears to be supported by the divorce decree she provides, it is not the overriding principle in this case.  The clear intent of the governing law is to provide a former spouse an alternative means of gaining SBP coverage once an agreement is entered into and validated by a court if the service member involved fails to comply with the terms of the agreement.

2.  In this case, it is clear that although the FSM initially agreed to continue SBP coverage for the applicant as his former spouse, he failed to change his SBP election to "former spouse" subsequent to their divorce.

3.  There is no indication the applicant submitted a deemed election request within the 1-year-of-divorce time frame established by law and there is no evidence to show the applicant attempted to clarify her SBP entitlement at any time prior to the FSM's death.

4.  There are equity considerations that would normally be entertained in this case given the FSM clearly agreed to provide the applicant SBP coverage after their divorce.  However, the evidence of record confirms that the FSM's widow is now listed as his lawful beneficiary for SBP benefits.  It is recognized that the divorce decree awarded the SBP to the applicant and specifically ordered the FSM to timely execute all documents necessary to maintain the applicant's designation as a former spouse SBP beneficiary.

5.  Unfortunately, it appears the FSM did not take the action directed by the court and a deemed election request from the applicant was not received and processed by DFAS within 1 year of the divorce as required by the SBP statute.  The FSM also remarried and the SBP spouse coverage vested in his current spouse as her property upon the first anniversary of their marriage.

6.  The Board cannot divest the FSM's current widow of her interest in the SBP without an order from a State court of competent jurisdiction over the divorce proceedings of the applicant and the FSM.  That is, the Board cannot take the SBP from the FSM's widow without violating her constitutional right to due process of law.  Therefore, 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 after a proceeding that the applicant is the proper SBP beneficiary, the applicant can apply to this Board for reconsideration.

7.  In the alternative, the Board may reconsider the applicant's request if she obtains a notarized, sworn affidavit from the FSM's widow irrevocably renouncing her right to the SBP annuity.  The letter provided from the FSM's widow does not satisfy this requirement given it is not notarized and the widow fails to irrevocably renounce her right to the SBP annuity.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.

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)                                         AR20100023708



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ABCMR Record of Proceedings (cont)                                         AR20100023708



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