IN THE CASE OF:
BOARD DATE: 3 April 2012
DOCKET NUMBER: AR20110016783
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, a former spouse of the 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:
* They failed to follow-up within 1-year of their divorce on 9 May 2006
* The FSM intended for her to have SBP benefits following his death
* The FSM did not follow through regarding their divorce but he did make provisions in their divorce decree for her to have SBP benefits after his death
3. The applicant provides:
* Settlement Agreement and divorce documents
* FSM's death certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 16 March 1955 and remained on active duty through continuous reenlistments. He married Dxxxxxx on
27 October 1972.
2. The FSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 8 January 1985, that shows he enrolled in the SBP and elected spouse only coverage, full amount. This form shows Dxxxxxx, his spouse, was the designated beneficiary for unpaid retired pay or gratuity pay.
3. He retired in the rank of command sergeant major on 31 March 1985.
4. The FSM and Dorothy divorced on 9 May 2006.
5. The applicant provided a Settlement Agreement, dated 7 April 2006, which states "It is acknowledged and understood that Husband has contributed to the Survivor's Benefit Plan for Uniformed Service and that Wife is eligible to receive the benefits from said plan upon Husband's death. Husband shall continue contributing to the plan with Wife as beneficiary. The parties acknowledge that the current contribution to the Plan is at the maximum and the Husband agrees to maintain the contribution at the maximum allowed for the benefit of the Wife."
6. On an unknown date, the FSM married Exxxxxxx.
7. On 7 February 2011, the FSM died. His death certificate shows he was married to Exxxxxxx.
8. Records at the Defense Finance and Accounting Service show:
* the FSM had no eligible beneficiary for SBP
* that office was not notified of his marriage to Exxxxxxx
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, not by name. As long as she was the FSM's wife, she was the SBP beneficiary. Once they divorced she was no longer a beneficiary.
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 is unknown. At the 1-year anniversary of their marriage his spouse would have acquired a vested interest in the SBP as the FSM's legal beneficiary. At this time we do not know if the FSM's spouse was vested.
4. The evidence presented is insufficient to grant the applicant the relief requested.
5. The applicant may seek reconsideration, if she is able to show the FSM's widow was not married to him for at least 1-year prior to his death or if the marriage length was of more than 1-year, she presents evidence showing the widow voluntarily relinquishes her entitlement to SBP or has been ordered to do so by a court of competent jurisdiction.
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) AR20110016783
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ABCMR Record of Proceedings (cont) AR20110016783
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