IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110012205 


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 entitlement to Survivor Benefit Plan (SBP) benefits and restoration of her military identification (ID) card.

2.  The applicant states she was married to the FSM from 16 April 1960 to
29 October 1987 and served with him for over 23 years (sic) of active military service.  She was denied the privilege of obtaining a military ID card after their divorce.  Further, she has outlived the FSM and she is disabled.  The social security benefits she receives as a former spouse is her only source of income and this has caused her financial hardship.  She contends she is entitled to a portion of his retirement and to have her military benefits, to include a military
ID card, restored.

3.  The applicant provides a Marriage Certificate and Divorce Decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 4 January 1955 and he married the applicant on 16 April 1960.

2.  The FSM was retired due to permanent physical disability on 4 November 1977 and he was placed on the Retired List on 5 November 1977.


3.  On 16 November 1977, the FSM elected to participate in the SBP for spouse only, full base amount.

4.  On 29 October 1987, the applicant and the FSM divorced.  There is no reference in the marital dissolution agreement that pertains to the FSM's SBP benefits.  The agreement does state that because the FSM had a military retirement and he was employed, he had the ability to pay spousal support; therefore; he would pay the applicant $1,000.00 per month in spousal maintenance.

5.  The FSM died on 24 March 2011.  His obituary shows he was married at the time of his death and Anna is named as his surviving spouse.  There is no available information on the date of their marriage.

6.  On 26 March 2011, the Defense Finance and Accounting Service (DFAS) notified the applicant that her payments under the Uniformed Services Former Spouses' Protection Act (USFSPA) from the retired pay of the FSM were being terminated due to the member's death.

7.  An inquiry of the FSM's retired pay record found that on an unknown date prior to March 1995, he elected to change his SBP beneficiary.  The record also shows that Anna is currently receiving the SBP annuity.

8.  The available records do not show the FSM ever made a voluntary election to change his SBP election from spouse to former spouse coverage within 1 year after their divorce.

9.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP coverage for former spouses of retired members.

10.  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 in writing, 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.

11.  Further, Public Law 97-252, the USFSPA and its subsequent amendments, established military benefits to certain unremarried former spouses.  It states in 


order for a former spouse to qualify for an identification and privilege card, "ALL" of the following minimum eligibility requirements must be met:

	a.  a marriage of at least 20 years;

	b.  creditable service of at least 20 years; and

	c.  marriage overlaps with service by at least 15 years but less than 20 years.

12.  Army Regulation 600-8-14 (Identification Cards for Member of the Uniformed Services, Their Family Members, and Other Eligible Personnel) prescribes the policies and guidance on the issuance of military identification cards for all branches of the military with the exception of the Air National Guard and Air Force Reserve Command.  Paragraph 3.3 (Categories, Eligibility Criteria, Benefits, Privileges and Expiration Dates for DoD Beneficiaries (Unremarried Former Spouses), Table 3.3.3 (Unremarried Former Spouse (20-20-15)) covers the criteria for an unremarried former spouse who at the time of divorce was married to the member for 20 years during which time the member performed
20 years creditable service in determining eligibility to retired or retainer pay and the marriage and service overlapped at least 15 years but less than 20.  It states former spouses qualifying under the 20-20-15 provision whose divorce occurred on or after 1 April 1985 but before 29 September 1988 were entitled to an ID card for 2 years from the date of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time of the FSM's retirement in 1977 while married to the applicant, the FSM elected to participate in the SBP for spouse only coverage at the full base rate.  Years later, the FSM and the applicant were divorced.  Their divorce degree only required the FSM to provide spousal support, but does not address an SBP annuity.

2.  It appears the FSM did not change his SBP election from "spouse" coverage to "former spouse" coverage.

3.  The FSM remarried on an unknown date after his divorce from the applicant.  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 his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his current spouse, not his former spouse, if they have been married for at least 1 year.


4.  Notwithstanding the applicant's sincerity, the ABCMR may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for so doing would deprive his current spouse of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from his current spouse renouncing or relinquishing any interest in the SBP annuity, or an order from a court of competent jurisdiction stating that the applicant has a superior interest in the SBP annuity.

5.  Regarding the applicant's request for restoration of a military ID card, the FSM and applicant were married for 27 years, 6 months, and 13 days of which
17 years, 6 months, and 20 days of their marriage overlapped his military service.  Based on this overlapping service of more than 15 but less than
20 years, by Army regulation, the applicant was only entitled to a military ID card for a period of 2 years from the date of their divorce, in effect from 29 October 1987 through 28 October 1989.  Therefore, there is no basis for granting this portion of the applicant's request.

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)                                         AR20110012205



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ABCMR Record of Proceedings (cont)                                         AR20110012205



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