IN THE CASE OF:	  


		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110006782


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 deceased former service member (FSM), requests correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce. 

2.  The applicant states, in effect, it appears the FSM's records may have gotten messed-up, misplaced, or filed in an incorrect order, when his paper records were transitioned to electronic records.
 
3.  The applicant provides:

* DA Form 4240 (Data for Payment of Retired Army Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Commonwealth of Kentucky Certificate of Death
* 6 separate letters that were written to the Army Board for Correction of Military Records (ABCMR), dated 31 May 2010, 14 July 2010,
18 February 2011, 10 March 2011, 3 May 2011, and 4 May 2011  
* her separation agreement, dated 3 August 1989
* her divorce decree, dated 5 September 1989
* Hardin County, Kentucky, Circuit Court Order, dated 12 February 2002





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 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.  The FSM was a retired Regular Army sergeant first class (SFC)/E-7 who initially entered active duty on 18 April 1961.  He served through a variety of stateside and overseas assignments, including 3 tours in Germany and 2 tours in Vietnam.  He held military occupational specialties (MOS) 12B (Combat Engineer) and 51P (Utilities Foreman).     

3.  The FSM married his spouse Sxxxxx, the applicant, on 16 March 1965.  

4.  On 4 February 1981, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240, wherein he indicated he was married to Sxxxxx and had a dependent child.  He elected spouse and dependent children SBP coverage based on the full amount of his retired pay.  

5.  The FSM was honorably retired on 30 April 1981, after completing over
20 years of faithful and honorable active service.  On 1 May 1981, he was placed on the retired list in his retired rank/grade of SFC/E-7.  

6.  On 5 September 1989, the FSM and Sxxxxx were divorced.  Neither the FSM's divorce decree, nor its preceding Separation Agreement, specifically addresses the SBP.

7.  There is no indication the FSM notified DFAS within 1 year of his divorce to change his SBP election to former spouse coverage.  

8.  On a later, unknown date, the FSM married his surviving spouse, Axxxxx (Gxxx).

9.  On 23 December 2001, the FSM died.  His death certificate shows he was married to Axxxxx at the time of his death.

10.  In an e-mail exchange with an ABCMR staff member, an official from the Defense Finance and Accounting Service (DFAS) identified the FSM's surviving spouse, Axxxxx, as the eligible SBP beneficiary, as the FSM's divorce decree with his former spouse Sxxxxx did not address the SBP and the FSM never voluntarily changed his election from "spouse" to "former spouse" following his divorce.

11.  The applicant provides:

   a.  Six separate letters that were written to the ABCMR between May 2010 and May 2011, wherein she states she has been given the "run-around" and has been cheated out of her benefits, despite her numerous attempts to resolve this issue with the Army.  She requests the Board's assistance in correcting previous injustices she has suffered, including:

* denial of SBP benefits which she describes as a one-time payment due for insurance the FSM took out (she was the sole beneficiary)
* denial of other benefits, including the issuance of a military identification card so that she can access the post exchange (PX), medical treatment facilities, and other on-post resources as she is entitled
* the SBP annuity is being paid to the FSM's surviving spouse; but she is the sole beneficiary, based on her marriage to the FSM during his period of active service
* denial of the FSM's disability payments

   b.  Her separation agreement, dated 3 August 1989, which states the FSM was required to assist the applicant in gaining access to all military facilities, privileges, and benefits to the extent the applicant was, by law or regulation, entitled or privileged to use them.

   c.  Her divorce decree, dated 5 September 1989, which does not mention the FSM's military service, retirement income, or the SBP.  

   d.  Hardin County, Kentucky, Circuit Court Order, dated 12 February 2002, which concerns a judgment for arrears in the FSM's military retirement pay due the applicant.  This judgment does not mention SBP or other benefits or entitlements.

12.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Elections are made by category, not by name (emphasis added).  An election, once made, was irrevocable except in certain circumstances.  

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members, to include Reserve members.

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 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be entitled to SBP benefits based on the death of her former husband, the FSM.

2.  The available evidence shows that at the time of the FSM's retirement in 1981 the FSM elected to participate in the SBP for spouse and dependent children coverage at the full rate of his retired pay.  Years later, he and his spouse were divorced.  Their divorce decree did not obligate him to change SBP coverage from spouse coverage to former spouse coverage.  

3.  The FSM did not make a former spouse election within 1 year of his divorce.  A change in SBP beneficiary would have been a strictly voluntary action on the part of the FSM (absent a provision in the divorce decree) which the evidence of record shows he did not make. 

4.  Furthermore, the FSM later remarried prior to his death.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of his death, his spouse, not his former spouse, if they were married for at least 1 year. 

5.  The ABCMR may not correct the FSM's records to effectively change his election to former spouse, for so doing would deprive his widow of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed and notarized declaration from his widow renouncing any interest in the SBP annuity or a court order divesting the widow of her interest effective no later than the day prior to the FSM's death.

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)                                         AR20110000948



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ABCMR Record of Proceedings (cont)                                         AR20110006782



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