IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20110010711 


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, Mary, a former spouse of a deceased former service member (FSM), requests correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

* she and the FSM were married from January 1950 to June 1995
* when he retired in 1973, the FSM elected spouse only SBP coverage
* the divorce decree directed the FSM to change his SBP election to former spouse coverage 
* neither she nor the FSM made a deemed election for former spouse coverage within one year of their divorce on 19 June 1995
* her lawyers never told her to file any papers with the Defense Finance and Accounting Service (DFAS)

3.  The applicant provides:

* a statement
* her marriage license
* divorce judgment and decree
* FSM's death certificate


CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant, Mary, were married on 3 January 1950.  With prior service in the U.S. Army Reserve (USAR) and Army National Guard (ARNG), he served in the Regular Army from 6 January 1956 to his retirement on 31 May 1973.

2.  The FSM's record contains a DD Form 1883 (Survivor Benefit Plan – Election Certificate), dated 1 May 1973, that shows he enrolled in the SBP for spouse only coverage, reduced amount.  This form shows the applicant, as his spouse, was the designated beneficiary.

3.  He retired in the rank of sergeant first class on 31 May 1973.

4.  The FSM and Mary divorced on 19 June 1995.  

5.  The applicant provided a Settlement Agreement, dated 20 June 1995, which states "The Plaintiff is awarded a division of the Defendant's retired pay as part of an equitable division of property.  The Plaintiff is awarded 50% of Defendant's disposable retire [sic] pay per month beginning on June 1, 1995 and continuing every month thereafter.  Defendant is ordered to designate the plaintiff as the Survivor Benefit Plan beneficiary."

6.  On an unknown date, the FSM married Sarah.

7.  On 4 April 2011, the FSM died.  His death certificate shows he was married to Sarah.

8.  The DFAS records show SBP premium deductions were discontinued in June 1995 upon notification of the FSM's divorce.  Records also show DFAS is unaware of the FSM's remarriage to Sarah.

9.  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. 

10.  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.



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

12.  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.

13.  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 (i.e., spouse), not by name.  As long as she was the FSM's wife, the applicant was the SBP beneficiary.  Once they divorced, she was no longer a beneficiary because she was a former spouse, not a spouse.  

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; however, the date of marriage is unknown. At the 1-year anniversary of their marriage his spouse, Sarah, would have acquired a vested interest in the SBP as the FSM's legal beneficiary.  At this time we do not know if Sarah was vested.  However, if Sarah was vested and since it appears the FSM did not affirmatively decline SBP for her, Sarah is automatically covered, even though DFAS was not notified of her marriage to the FSM and did not start collecting SBP premiums again.

4.  Regrettably, the evidence presented is insufficient to grant the applicant the relief requested.  



5.  The FSM's widow has a superior right to the FSM's SBP.  The applicant may seek reconsideration, if she is able to show the FSM's widow was not married to him for at least one year prior to his death or if the marriage length was of more than one year, she presents evidence showing the widow voluntarily waives her right to SBP through a signed and notarized statement, or the applicant gets a court order from a proceeding in which the widow is a proper party.

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)                                         AR20110010711





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ABCMR Record of Proceedings (cont)                                         AR20110010711



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