IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110019394 


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 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 mailed a deemed election form and the divorce decree to the Defense Finance and Accounting Service (DFAS) in a timely manner (January 2010)
* Her request was initially denied by DFAS because they were unable to find the paperwork
* The record reflects she did not file the paperwork within the proper time frame
* It would be unjust to deny her SBP benefits because DFAS was unable to locate the records
* It was the FSM's request per the Stipulation Agreement of their final divorce decree that she become the irrevocable beneficiary during her lifetime under the SBP
* The FSM provided proof of his intentions by signing the SBP election statement on 22 September 2009 which designated her as a former spouse and recipient of his SBP annuity


3.  The applicant provides:

* a self-authored statement, dated 3 December 2011
* FSM's Certificate of Death
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 22 September 2009
* DD Form 2656-7 (Verification for Survivor Annuity), dated 15 September 2011
* Voided check
* Department of the Treasury Financial Management Service (FMS) Form 2231 (Faststart Direct Deposit)
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* Final decree of divorce, dated 8 December 2009
* Stipulation and Agreement, dated 22 September 2009
* Emails

CONSIDERATION OF EVIDENCE:

1.  The FSM was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 31 May 1968.  He entered active duty on 29 July 1968.  He married Barbara on 10 October 1987.

2.  The FSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 22 July 1988, that shows he enrolled in the SBP for spouse only coverage, reduced amount ($500.00).  This form shows Barbara, his spouse, was the designated beneficiary for unpaid retired pay or gratuity pay.

3.  He retired in the rank of major on 31 July 1988.

4.  On 27 April 1994, the FSM and Barbara divorced.

5.  The FSM married the applicant on 30 April 1994.

6.  The FSM and the applicant divorced on 8 December 2009.  The Stipulation and Agreement, dated 22 September 2009, states the FSM will designate the applicant as his former spouse (an irrevocable beneficiary during her lifetime) under the SBP.

7.  He married Tricia on 13 February 2010.

8.  On 13 August 2011, the FSM died.  His death certificate shows he was married to Tricia.

9.  In support of her claim, the applicant provided a DD Form 2656-1 which shows the FSM changed his SBP coverage to former spouse on 22 September 2009.  She signed the form on 1 October 2009.  

10.  She also provided an email, dated 13 September 2011, from DFAS which states:

* That office was unable to award her SBP benefits
* In order to have been placed on her ex-husband's SBP as former spouse that office would have needed to receive a copy of her final divorce decree stating she was entitled to the SBP as well as a signed deemed election form from her within 1 year of her date of divorce
* That office has received neither

11.  DFAS records show Tricia is the SBP beneficiary. 

12.  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. 

13.  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.

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

15.  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.

16.  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.  The applicant's contention she filed the necessary paperwork within a timely manner and the DD Form 2656-1 she provided which shows the FSM requested his SBP coverage be changed to former spouse coverage on 22 September 2009 were noted.  However, there is no evidence which shows DFAS received this form within the statutory 1-year time limit.  No such document appears in DFAS records.

3.  There is evidence to show the FSM remarried on 13 February 2010.  At the
1-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

4.  The Army Board for Correction of Military Records (ABCMR) may not act to terminate the widow's rights in the SBP annuity by granting the applicant the SBP, as doing so would deprive the FSM's widow of a property interest without due process of law.  However, if the applicant were able to submit a certified mail receipt or return receipt that locked down the timeliness of her deemed election request, she may request reconsideration.  Otherwise, she would have to provide a signed and notarized affidavit from the FSM's widow relinquishing her rights in the SBP in favor of her or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's widow as a party, declaring that she is the rightful beneficiary of the FSM's SBP annuity.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM's widow or an order from a State Court of competent jurisdiction that directs payment of the FSM's SBP annuity to the applicant.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20110019394



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ABCMR Record of Proceedings (cont)                                         AR20110019394



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