IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110017476 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of the records of her deceased former spouse, a former service member (FSM), be corrected to show she was designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).

2.  Counsel states:

	a.  It appears the memorandum from G____ W____, an Army representative handling SBP, was not previously considered.

	b.  The board's decision to deny the applicant's request for SBP lacked merit as a matter of equity.  The equitable thing to do in this case is to correct the records to show the applicant made the proper SBP election within 1 year of the divorce decree.

	c.  The applicant received a letter from an SBP counselor indicating the FSM's new spouse could veto the applicant's SBP election; however, the FSM's new spouse cannot override a court order.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011136 on 2 December 2010.

2.  Counsel provides new arguments that were not previously considered by the Board; therefore, these new arguments warrant consideration by the Board.

3.  The applicant and FSM were married on 12 October 1967.  He enlisted in the Regular Army on 21 January 1971 and held military occupational specialties 36K (Wireman) and 11B (Infantryman).  He served in a variety of overseas and stateside assignments and he attained the rank/grade of staff sergeant/E-6.

4.  His DD Form 214 shows he was honorably retired from active duty on 31 January 1991.

5.  His records contain a DA Form 4240 (Data for Payment of Retired Personnel), dated 15 February 1991 (after his retirement), wherein he declined SBP coverage.  The form also shows his spouse at the time (applicant) was not available for signature or counseling and would be informed of the designation by letter.

6.  Subsequent to his retirement, the FSM and applicant were divorced.  Their divorce decree, dated 11 June 1991, states the following:

	a.  "Findings of Salient Facts and Conclusions of Law," paragraph 21, stated, "due to the duration of the marital relationship, the Defendant (applicant) may qualify for military benefits such as military identification card (ID) and commissary/post exchange (PX) privileges, SBP protection, etc.  I find and conclude that the Plaintiff (FSM) should not engage in any acts to prevent the defendant and minor child from receiving the military benefits for which they qualify"; and

	b.  "Order," paragraph f, stated, "based on the above findings of salient facts and conclusions of law, it is hereby ordered [the] Plaintiff shall not engage in any acts to prevent the Defendant (applicant) and the minor child from receiving the military benefits for which they qualify."

7.  The previous ABCMR case stated, "though the FSM attempted to decline SBP, it appears his coverage defaulted to spouse coverage either for lack of a spousal concurrence or because he failed to make an election prior to his date of retirement.  DFAS records indicate the FSM had spousal coverage from retirement to death.  The annuity is being paid to his [surviving spouse] and she cannot be deprived of her interest without due process."

8.  Counsel submits a letter which indicates there were two enclosures, a divorce decree and memorandum from G____ W____, an Army representative handling SBP.  Neither document was included; however, the divorce decree was already a part of the FSM's permanent record.  A staff member from the ABCMR contacted the applicant's counsel to acquire the memorandum; however, counsel failed to submit the document.

9.  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.  Changes in SBP options are not authorized except in specific instances or as authorized by law.  SBP elections are made by category, not by name.  An election to decline to participate in SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse.

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that State courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  The USFSPA contains strict jurisdictional requirements.  The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the State (other than pursuant to military orders), domicile in the State, or consent.

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired active and reserve members.  An insurable interest option was authorized for beneficiaries following divorce if previously covered under the "spouse" option.

12.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to provide coverage.

13.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.  The implementing guidance associated with this law directed that "if any member withdraws from participation for a spouse or spouse and child, that member's spouse will be notified in the same manner, appropriately documented, as if the member had elected not to participate in the plan upon retirement."

14.  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.

15.  Title 10, U.S. Code, section 1448(f)(3), provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.

DISCUSSION AND CONCLUSIONS:

1.  Counsel failed to provide the memorandum from G____ W____, an Army representative handling SBP; therefore, it was not considered in this case.

2.  Counsel's argument that the board's previous decision to deny the applicant's request for SBP lacked equity has been considered; however, the board found the argument unpersuasive.

3.  Counsel argues the applicant is entitled to SPB coverage by court order and the FSM's new spouse does not have the authority to override a court order.

4.  Paragraph 21 of the court "Findings of Salient Facts and Conclusions of Law" clearly states the applicant may qualify for military benefits such as military ID and commissary/PX privileges, SBP protection, etc., and the FSM should not engage in any acts to prevent the applicant from receiving the military benefits for which she qualifies.

	a.  This statement is unmistakably stating that she might qualify for certain benefits and the FSM should not try to stop her from receiving the benefits for which she may qualify.

	b.  This paragraph does not clearly and unequivocally state she is entitled to any specific benefit.  Additionally this portion of the divorce decree pertains to findings and facts; it does not in and of itself constitute a binding court order.

5.  Paragraph f of the court "Order" is the portion of the divorce decree that specifically orders the parties involved to follow the court's outlined guidance.  This paragraph stated that based on the findings of salient facts and conclusions of law, the FSM was hereby ordered not to engage in any acts to prevent the applicant from receiving the military benefits for which she qualifies.  This order does not specifically order the FSM to provide the applicant with SBP coverage.  It only orders him not to engage in acts to prevent her from receiving military benefits.

6.  In any case, it appears the FSM complied with the court order.  He did not take any action to prevent the applicant from receiving benefits.  Further, even if there had been no ambiguity regarding her entitlement to SPB, the applicant made no attempt to protect her interest in SBP via a deemed election of former spouse coverage.

7.  Since the FSM died with spouse SBP coverage in effect, his legal spouse at the time of his death is the lawful beneficiary of his SBP.  The Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

8.  The Board may not divest the FSM's widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM's widow as a party in order to protect her property interest and rights.  If the court determines the applicant is the proper SBP beneficiary and so orders, the applicant can apply to the 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 voluntarily relinquishing her right to the SBP annuity.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100011136, dated 2 December 2010.



      ___________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)                                         AR20110017476



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ABCMR Record of Proceedings (cont)                                         AR20110017476



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