IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110003140 


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, the former spouse of a former service member (FSM) requests that his Survivor Benefit Plan (SBP) election be changed from spouse to former spouse coverage.  

2.  The applicant states:

* the FSM has neglected to maintain SBP which is stipulated in the divorce decree as a benefit for her
* she wishes to make a deemed election of SBP coverage
* the FSM has remarried
* her daughter told her the FSM has changed the beneficiary on the SBP

3.  She provides:

* a letter from the Defense Finance and Accounting Service (DFAS)
* DD Form 2656-10 (SBP/Reserve SBP Request for Deemed Election)
* divorce decree
* marriage certificate
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document)



CONSIDERATION OF EVIDENCE:

1.  The FSM initially enlisted in the Regular Army on 11 September 1973.  He and the applicant were married on 12 March 1974.  

2.  On 20 February 1997, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected SBP coverage for spouse only at a reduced base amount.  The applicant is listed as his spouse.  

3.  On 31 May 1997, he retired after completing 20 years of active service.  

4.  The FSM and the applicant entered into an Agreement of Parties in March 2003.  The agreement stated the following regarding survivor benefits:  “The husband shall have the First Command account, his 401K, IRA and his military retirement.  The husband shall maintain the survivorship option on his military retirement in favor of the wife."

5.  The FSM and the applicant were divorced on 4 June 2003.  

6.  His service record is void of evidence which indicates the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of the divorce.  

7.  Based on the statement provided by the applicant, the FSM remarried.  The date of his remarriage is not available.  

8.  In a 31 January 2011 letter, DFAS informed the applicant that "If your divorce decree specifies that you are to be designated as a former spouse beneficiary for SBP you must make a 'deemed election' for SBP coverage within 1 year of the date of your divorce or other court order requiring SBP coverage for you directly to the Retired Pay Office; DFAS, US Military Retirement Pay, PO Box 7130, London, KY  40742-7130."

9.  On 8 February 2011, the applicant submitted a DD Form 2656-10 to request a deemed election for SBP coverage based on the divorce decree.  

10.  Information obtained from the DFAS in May 2011 revealed that DFAS never received anything regarding a marital status change for the FSM.  The FSM's beneficiary was the applicant V------ D. I---.  



11.  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.

12.  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.

13.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  

14.  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.

15.  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.

16.  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 applicant's contentions in regard to her request for SBP coverage as required in the divorce decree are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.

2.  The FSM retired on 31 May 1997 and he elected to participate in the SBP for reduced spouse coverage.  He was married to the applicant at that time.

3.  The FSM and applicant were divorced on 4 June 2003.  The Agreement of Parties indicated the FSM would “maintain the survivorship option on his military retirement in favor of the wife."  However, there is no evidence which indicates the FSM or the applicant submitted a written request to DFAS to change the SBP coverage from spouse to former spouse coverage within 1 year of their divorce as required by law.

4.  According to the applicant's statement, the FSM remarried; however, the date is unknown.  By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage.

5.  Since the lawful beneficiary of the FSM's SBP is his current spouse, and in the absence of a timely deemed election, the ABCMR cannot take away the current spouses right to the SBP without her irrevocable consent or due process of law.  Therefore, it would be inequitable to grant the applicant’s request 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 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)                                         AR20110003140



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ABCMR Record of Proceedings (cont)                                         AR20110003140



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