BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004456 


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, through her member of Congress, reconsideration of her earlier request that the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse. 

2.  The applicant states she was told that she was given the run-around.  She should be the one on record entitled to the SBP benefits of her former husband.  This was put in their divorce decree which her former husband signed.  She did not know she had to fill out a form within one year of their divorce and she did not receive such form.  She was told if she never received the form, then the Army has to prove that she got it.  The Army can't prove it because she never received it.  The Army must have known or else why would they have her name as the beneficiary.  She feels she should be entitled to the annuity after being married to him throughout his entire career.  

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011165, on 19 October 2010.

2.  The applicant submitted a new argument which was not previously reviewed by the Army Board for Correction of Military Records (ABCMR); therefore, it is considered new evidence and as such warrants consideration by the Board. 

3.  The FSM was born on 30 September 1942 and married Nora, the applicant, on 12 October 1963. 

4.  Having had prior service in the Regular Army, the FSM enlisted in the Virginia Army National Guard (VAARNG) on 24 October 1963 and he held military occupational specialties 11B (Infantryman) and 45Z (Armament/Fire Control Supervisor).  He served through multiple extensions and attained the rank/grade of sergeant first class (SFC)/E-7.  

5.  On 29 January 1981, the National Guard Bureau issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20 year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  On 27 February 1981, the FSM completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Nora and he had dependent children.  He further elected "spouse and children" Reserve Component SBP (RCSBP) coverage, option C (immediate coverage), based on the full amount.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  The back page of this form, which would have shown the spouse concurrence/non-concurrence is not available for review with this case.

7.  He was honorably discharged from the ARNG and he was transferred to the Retired Reserve on 24 April 1991. 

8.  On 18 July 1996, the FSM and applicant were divorced.  Their Military Pension Division Order stipulated that the FSM would elect to make the applicant sole primary beneficiary of the SBP.

9.  There is no indication that the FSM changed his RCSBP election as a result of this divorce.  There is also no indication the applicant made a request for a deemed election of former spouse coverage within one year of the divorce.

10.  The FSM remarried on 7 September 2002.  

11.  He turned 60 on 29 September 2002.  It is unclear if he applied for retired pay.  His records do not contain official orders placing him on the retired list. 

12.  He died on 8 September 2009.  His death certificate shows that he was married to Carolyn at the time of death.  However, it is unclear whether Carolyn is the woman he married in 2002. 

13.  Records at the Defense Finance and Accounting Service show no one is receiving the SBP annuity.

14.  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. 

15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Additionally, Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

16.  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.

17.  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 FSM received his 20-year letter in January 1981.  He elected to participate in the RCSBP for spouse and children coverage.  He and his spouse, the applicant, were divorced in July 1996.  The divorce decree stipulated she would be the beneficiary of his SBP.  However, the FSM did not make a former spouse election within one year of the divorce as required by law and the applicant did not request a deemed election, also required to be made within one year of her divorce from the FSM.

2.  Further, although the applicant has apparently been advised that the Army was required to provide her with a form, such is not the case.  It was the applicant and her attorney's responsibility to submit a request for deemed election; not the Government's to solicit such a request.

3.  Additionally, the FSM remarried.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of the FSM's death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse (now widow), not his former spouse, if they had been married for at least one year.  The FSM’s second wife survived him when he died in 2009 and therefore she is entitled to receive the SBP annuity, if married to him for one year or more.

4.  The ABCMR may not correct the FSM's records to effectively change his election to former spouse, for so doing would potentially deprive his widow of a property interest without due process of law.  The ABCMR would accept a reconsideration request if:

	a.  accompanied by a signed, notarized declaration from this widow renouncing any interest in the SBP annuity or an appropriate court order indicating the applicant's right to the SBP annuity is superior to that of the widow; or

	b.  evidence that the widow's marriage to the FSM was of less than one year's duration. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20100011165, dated 19 October 2010.



      _______ _ 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)                                         AR20110004456



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ABCMR Record of Proceedings (cont)                                         AR20110004456



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