IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100024294 


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 entitlement to 1/3 of her deceased former husband's pay, and in effect, entitlement to the Survivor Benefit Plan (SBP) annuity based on his death.  

2.  The applicant states she was awarded 1/3 of all of her former husband's retirement after having been married to him for 26 years.  In the divorce judgment, he refused to comply.  The only time she was not given the run around by the military was after his death and she was told she should have done this while he was living.  She describes her former husband, a former service member (FSM), as controlling and abusive.  When the children were growing up, he would tell her if she left, he would quit his job and move to Alabama and live on the river and that she would not get support.  She left for North Dakota in 1991 and lived with her mother.  That fall, he came and took the car and told her she had a choice to go with him or go home in a box.  She did not go with him either way.  They were ultimately divorced in 1992.  Their marriage was full of ups and downs and when they were finally divorced, she asked for 1/3 of his retirement money but did not list that on their divorce.  She actively tried to resolve the issue in 2003 with no success.  Her lawyer did not know what needed to be done.  When he died in November 2009, she again tried to settle the issue of the retired pay but she was again given the runaround.  

3.  The applicant provides her marriage certificate, divorce judgment, the FSM's death certificate, and the FSM's Servicemen's Group Life Insurance Election and Certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 21 June 1936.  He and the applicant were married on 7 August 1962.  

2.  Having had prior service in the U.S. Air Force, the FSM's records show he enlisted in the Colorado Army National Guard (COARNG) on 26 August 1978.  He served through multiple extensions in the ARNG and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 20 July 1992, the FSM and the applicant were divorced.  Their divorce decree awards the applicant $300.00 per month as her portion of unspecified retirement plans.   It makes no mention of the SBP or any other military benefits. 

4.  On 11 May 1994, the COARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the FSM that he completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  In connection with this notification, he completed a DD Form 1883 (SBP Election Certificate) wherein he indicated he was married to the applicant but had no dependent children.  He elected participation in the Reserve Component SBP (RCSBP), full coverage, under Option C (immediate coverage).  

6.  He was honorably discharged from the ARNG on 25 August 1994 and he was transferred to the Retired Reserve.

7.  On 24 January 1996, in connection with his application for retired pay, the FSM completed a DD Form 2656 (Data for Payment of Retirement Personnel) wherein he indicated he was single.  He further elected not to participate in the SBP.

8.  He was honorably retired and was placed on the retired list in his retired rank/grade of SFC/E-7 on 21 June 1996, his 60th birthday.

9.  On 3 November 2009, the FSM died.  His death certificate shows he was divorced at the time of death.  

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.  Elections are made by category, not by name.

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.

12.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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 retiree had elected spouse coverage at retirement 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM and applicant were divorced in 1992.  Their divorce decree is silent with respect to the RCSBP/SBP and unclear regarding distribution of retired pay.  In other words, their divorce decree did not specifically obligate the FSM to provide a portion of his military retired pay to the applicant or participate in the RCSBP. 

2.  At the time he was transferred to the Retired Reserve in May 1994, the FSM voluntarily made an RCSBP election for spouse coverage.  This election was invalid because the FSM and the applicant were already divorced.  Upon application for retired pay in 1996, he made an election not to participate in the SBP. 

3.  RCSBP and SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP spouse beneficiary.  A change in SBP to former spouse beneficiary would have had to have been a strictly voluntary action on the part of the FSM, which the evidence of record shows he did not make.  

4.  In view of the foregoing evidence, the applicant is not entitled to 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)                                         AR20100024294



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ABCMR Record of Proceedings (cont)                                         AR20100024294



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