BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110001287 


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 correction of the record of her deceased former spouse, a former service member (FSM), to show she is entitled to a Survivor Benefit Plan (SBP) annuity.  

2.  She states when she and her husband divorced in 2002, the divorce decree clearly stated she would receive military survivor benefits.  She states she was never informed or directed by any government agency or her husband that she had to deem an election for SBP if her husband did not complete the paperwork.  Her husband was also unaware of the requirements.  If he had known he needed to complete the paperwork he would have done it because he intended for her to receive the SBP annuity.

3.  The applicant provides a self-authored statement, Retiree Account Statement, Decree of Divorce, and a Certificate of Death.

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 22 April 1977, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  Part II (SBP Election) shows he elected spouse-only coverage based on the full amount of his retired pay and named E.R.C., the applicant, as his spouse.  This form shows her date of birth (DOB) as 26 May 1932.

3.  The FSM retired from the Regular Army on 30 April 1977 after completing 20 years and 3 days of total active service.  

4.  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 no deemed election for former spouse coverage.  DFAS records show he married the day after his divorce and the spouse of that new marriage has been receiving the annuity since his death.

5.  The applicant provides the following:

	a.  A Decree of Divorce shows she was divorced from the FSM on 5 September 2002.  The Decree of Divorce stated the applicant was to "remain the beneficiary of the [FSM's] Survivor Benefits through the military."

	b.  A Certificate of Death shows the FSM died on 25 October 2010 and that he was married to P.S.

	c.  A Retiree Account Statement, dated 2 December 2009, shows the FSM had elected spouse-only SBP coverage and that his spouse's DOB was 26 May 1932.

6.  In her self-authored statement, she notes that the spouse's DOB on the Retiree Account Statement she provides is her DOB and states the FSM did not remarry after their divorce or prior to his death.  She reiterates her assertion that it was his intention and their understanding that she would receive the SBP.

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.  

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 record of the FSM to show she is entitled to receive an SBP annuity.

2.  The FSM had 1 year to notify DFAS to change his election to former spouse coverage.  The applicant also had 1 year to submit a request that former spouse coverage be deemed.  The record shows no evidence that either party took action to change the SBP election.  

3.  The applicant states the FSM did not remarry after their divorce; however, the available documentation shows he did remarry.  It appears that DFAS records showed the applicant as the beneficiary as recently as 2009 and the records were updated to show his actual spouse at some point after that date.

4.  SBP elections are made by category, not by name.  Accordingly, because the FSM died with a spouse-only SBP election in effect his widow is the lawful beneficiary of his SBP annuity.  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.

5.  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 proper interest and rights.  If the court determines the applicant is the proper SBP beneficiary, she may 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)                                         AR20110001287



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ABCMR Record of Proceedings (cont)                                         AR20110001287



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