IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110016459 


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 the deceased former service member (FSM), requests correction of the FSM's records to show she made a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states they were divorced on 7 August 2002 and on 14 August 2002 she sent a letter to the Department of the Army, Retired Military Records because she was awarded the SBP in the divorce.  After the FSM's death she applied to the Retired and Annuity Pay office of the Defense Finance and Accounting Service (DFAS).  DFAS contacted her and stated the FSM did not send in a deemed election to validate the choice.  Therefore, she was ineligible for the SBP.  The FSM would never communicate with her and she was not aware he did not file the appropriate forms following their divorce.  She does not believe she should be penalized for his failure to change his election since the FSM indicated he wanted her to have the SBP as indicated by the divorce and she filed for the SBP as a former spouse appropriately.

3.  The applicant provides:

* a copy of her letter, dated 14 August 2002, to Retired Military Records
* her divorce decree
* the FSM's death certificate
* a DD Form 2656-7 (Verification for Survivor Annuity)
* an FMS 2231 (Fast Start Direct Deposit)
* a Form 2-4P (Withholding Certificate for Pension or Annuity Payments)
* a letter, dated 12 April 2011, from DFAS to the applicant
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 Army Board for Correction of Military Records (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.  On 1 August 1992, the FSM was placed on the Retired List.  He completed 
24 years and 26 days of active service.  His SBP election at retirement is not available for review.

3.  On 6 August 2002, the applicant and the FSM were divorced.  The divorce decree states the FSM was to keep in full force and effect his survivor benefit insurance plan available to him as a result of his military service and that the applicant was to be the exclusive beneficiary.

4.  The applicant provided a letter, dated 14 August 2002, addressed to the Department of the Army, Retired Military Records, ATTN: SBP Department, 
200 Stovall Street, Alexandria, VA.  She requested that her SBP status be changed from spouse to former spouse.  She included a copy of her divorce decree.

5.  On 22 February 2011, the FSM died.  

6.  On 15 March 2011, the applicant submitted a DD Form 2656-7.  In Item 6 (The Following Section Applies to Former Spouse Applicants Only) she indicated that the date of her divorce from the FSM was 6 August 2002 and the date of her remarriage was 10 September 2002.

7.  On 12 April 2011, DFAS denied her request for SBP benefits.  DFAS stated that while the divorce decree does show she was to be awarded the SBP, neither she or the FSM sent in a deemed election in writing to validate the choice.  DFAS directed her to the ABCMR to request the FSM's military record be amended to show her eligible to receive the SBP benefits as the former spouse.

8.  On 5 March 2012, the staff of the ABCMR contacted DFAS for the status of the SBP benefits concerning the FSM.  According to DFAS, SBP benefits are currently being paid to the FSM's surviving spouse, not the applicant.

9.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 one 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 or as part of a proceeding of divorce.

10.  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 one year of the date of the court order or filing involved.

11.  Title 10, U. S. Code, section 1448(a)(6) provides that a person with spouse coverage who remarries may elect not to provide coverage under the SBP for the person’s spouse if such an election is made within one year after the person’s remarriage.  The person’s spouse shall be notified of that election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to former spouse coverage under the SBP was carefully considered.  However, while the applicant's argument has logic and appears to be supported by the divorce decree she provides, it is not the overriding principle in this case.  

2.  There is no official record, other than the letter she provided, that she made a deemed election for former spouse coverage within 1 year of her divorce.  

3.  Based on the information obtained from DFAS, it appears the FSM remarried and his SBP election was shown as spouse only coverage.  There is no evidence of the FSM having elected not to provide coverage under the SBP for his current spouse within 1 year of their marriage.  Therefore, his current wife's entitlement became vested upon the first anniversary of their marriage.

4.  According to DFAS, his new wife, now his widow, is currently receiving SBP benefits.  
5.  The Board may not remove the payment of SBP from a legal beneficiary who is already receiving payments without an order from a State court of competent 
jurisdiction over the divorce proceedings of the applicant and the FSM.  That is, the Board cannot take the SBP from the FSM's widow without violating her constitutional right to due process of law.  Therefore, this court action would have to include his widow as a party in order to protect her property interest and rights. 

6.  If the court, after a proceeding, determines that the applicant is the proper SBP beneficiary, the applicant can re-apply to this Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM's widow irrevocably renouncing her right to the SBP annuity.  Regrettably, in view of the facts of this case, there is insufficient evidence that would warrant granting the relief requested at this time. 

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)                                         AR20110016459





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ABCMR Record of Proceedings (cont)                                         AR20110016459



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