IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20110005945 


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 the records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

* she should be the SBP beneficiary retroactive to April 2008
* the divorce decree, dated 25 March 2008, specifically identifying her as the SBP beneficiary was forwarded to "this office" on 15 April 2008
* the FSM also indicated he forwarded the appropriate paperwork to "this office"
* benefits have been paid out to the applicant under his pension as well

3.  The applicant provides:

* Judgment of Absolute Divorce
* Constituted Pension Order

CONSIDERATION OF EVIDENCE:

1.  The FSM married the applicant, N____, on 3 August 1985.  Having prior inactive and active service, he was commissioned as a second lieutenant on 24 May 1988 in the Regular Army and entered active duty.



2.  His DD Form 2656 (Data for Payment of Retired Personnel) is not available.

3.  He retired on 30 November 2007 in the rank of lieutenant colonel.

4.  He and the applicant N____ divorced on 18 January 2008.  The Constituted Pension Order (Military), dated 25 March 2008, states upon the FSM's death his former spouse, the applicant) shall receive survivor's benefits and said benefits shall continue until her own death.  The order directs that the premiums be split between the parties.

5.  The FSM married his current spouse, M____, on 5 December 2008.

6.  A DD Form 2656-6 (SBP Election Change Certificate), dated 23 July 2010, shows his current coverage is spouse and child.  He requested a change in coverage based on remarriage and he elected to resume the existing level of coverage for his new spouse.  Section IV (Requested Change to Coverage) of this form shows he elected spouse and children coverage.  Section V (Level of Coverage) of this form shows he elected full retired pay.

7.  Defense Finance and Accounting Service records show his current spouse, M____, as the SBP beneficiary.

8.  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. 

9.  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.

10.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

11.  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 1 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.

12.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  However, SBP elections are made by category, not by name.  As long as she was the FSM's wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.

2.  There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory 1-year time limit.

3.  There is evidence to show the FSM remarried on 5 December 2008.  At the 
1-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

4.  The ABCMR may not act to terminate the rights of the FSM's spouse in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM's spouse of a property interest without due process of law.  The applicant would have to provide a signed and notarized affidavit from the FSM's spouse wherein she knowingly and voluntarily relinquishes her rights in the SBP in favor of the applicant or obtain an order from a State court of competent jurisdiction in an action joining the FSM's spouse as a party and declaring the applicant as the rightful beneficiary of the FSM's SBP annuity and divesting his current spouse of her interest.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM's spouse or an order from a State court of competent jurisdiction that divests the FSM's current spouse of her SBP interest.



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)                                         AR20110005945



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ABCMR Record of Proceedings (cont)                                         AR20110005945



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