IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110010299


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:

* she and the FSM were married on 16 February 1969 and divorced on     24 March 1990
* their final judgment and divorce decree stipulated that she was to receive 40 percent of the FSM's military retirement and remain the beneficiary of his SBP annuity
* their separation agreement was written by a Judge Advocate General (JAG) officer, who informed them that the applicant would remain the elected SBP beneficiary – this could not be changed without her consent
* after their divorce, the applicant received a monthly allotment for her portion of the FSM's retired pay, as ordered by the court
* following the FSM's death in December 2004, the applicant notified the Defense Finance and Accounting Service (DFAS) and requested the SBP annuity, which was denied because she was no longer the FSM's spouse
* following the denial of her request, she contacted a lawyer who recommended she sue the FSM's estate – she later contacted her Members of Congress for assistance
* the FSM's DFAS Retiree Account Statement lists the applicant's date of (DOB) to identify the retiree's current spouse and SBP beneficiary – the applicant's DOB remained, despite their divorce and the FSM's remarriage
* the JAG officer never informed her or the FSM he needed to change his SBP election from spouse to former spouse
* the FSM did not know he needed to do anything besides giving the JAG officer a copy of their divorce decree

3.  The applicant provides:

* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), 
* marriage certificate
* divorce decree
* the FSM's State of Connecticut Certificate of Death
* DFAS letter, dated 14 July 2005
* letter written to her Member of Congress
* DFAS letter written to her Member of Congress, dated 11 April 2011
* DFAS Retiree Account Statement, dated 5 December 1997
* DFAS Retiree Account Statement, dated 2 December 1999

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 first sergeant (1SG)/E-8 who, after previous service in the Army National Guard, enlisted in the Regular Army and entered active duty on 3 August 1965.  He served through a variety of stateside and overseas assignments, including tours in Germany and Panama.  He also completed two combat tours in the Republic of Vietnam.  He held military occupational specialties (MOS) 11B (Light Weapons Infantryman) and 71L (Administrative Specialist).     


3.  The FSM married his spouse Exxxxx, the applicant, on 16 February 1969.  

4.  On 15 January 1985, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel), wherein he indicated he was married to Exxxxx and he had dependent children.  He elected spouse only SBP coverage, based on a reduced amount of his retired pay, in the amount of $300.00.  

5.  The FSM was honorably retired on 28 February 1985, after completing over
20 years of faithful and honorable active service.  On 1 March 1985, he was placed on the retired list in his retired rank/grade of 1SG/E-8.  

6.  On 23 March 1990, the FSM and Exxxxx were divorced.  The FSM's divorce decree contains the comment, "The husband also agrees that he will keep the wife enrolled under the Survivor Benefit Plan 10 U.S.C. [U.S. Code], Section 1447-1455."

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, Mxxxx.

9.  On 5 December 2004, the FSM died.  His death certificate shows he was married to Mxxxx at the time of his death.

10.  The applicant provides:

   a. Her separation agreement, dated 18 December 1989, which required the FSM to assist her in arranging for her use of military facilities and privileges, to the extent the applicant was, by law or regulation, entitled to use them.  This document further stipulates the FSM's responsibility to keep the applicant enrolled as the beneficiary of his SBP annuity.

   b. A letter from DFAS to her Member of Congress, dated 11 April 2011, which informs the Member of the Public Laws and portions of Title 10, U.S. Code relative to the applicant's request and the SBP.  DFAS states that since the FSM failed to notify DFAS of his divorce, and subsequent requirement to provide former spouse SBP coverage, within 1 year of the date of divorce, and since the applicant failed, within 1 year of the date of divorce, to request a deemed former spouse election, she (the applicant) has no entitlement to a monthly SBP annuity.  


11.  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.  

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

13.  Public Law 98-94, dated 24 September 1983, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage upon divorce.

14.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit (emphasis added).  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.

15.  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 1985, the FSM elected to participate in the SBP for spouse only coverage at a reduced rate of his retired pay.  Years later, he and his spouse were divorced; however, the FSM failed to make a former spouse election within 1 year of their divorce.  

3.  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 widow), not his former spouse, if they were married for at least 1 year. 

4.  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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010299



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1