IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110020032 


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 requests that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) spouse coverage to former spouse coverage.

2.  The applicant states she did not know that she was required to sign paperwork after the divorce in order to receive SBP benefits and assumes it was an oversight on the FSM's part.  

3.  The applicant provides certificates of marriage, death, and retirement; a letter from the Defense Finance and Accounting Service (DFAS); a DFAS Retiree Account Statement; divorce decree; and her driver license.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 18 September 1967.  He and the applicant were married on 18 July 1970.

2.  On 7 July 1989, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and elected to participate in the SBP for spouse and dependent children coverage at the full amount.  The applicant is listed as his spouse.  

3.  At the completion of 22 years of service, the FSM retired from active service on 1 October 1989.

4.  The FSM and the applicant were divorced on 19 June 1990.  The SBP is not mentioned in the divorce decree.

5.  The FSM died on 29 July 2011.  The death certificate indicates he was divorced at the time of death.

6.  The applicant provided a DFAS Retiree Account Statement, dated 29 January 2011, that shows the FSM was paying SBP premiums for spouse coverage only. The statement also indicates he was married to Bxxxxx (not the applicant).  

7.  The applicant provided a letter from DFAS in which she was informed that she was not entitled to receive an annuity under the SBP because the FSM's military retired pay record reflected he did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by the applicant.

8.  On 10 May 2012, a DFAS representative informed the case analyst that no SBP annuity is being paid at this time; however, they sent an annuitant package to Bxxxxx so that she could apply for the SBP annuity with the proper documentation.  DFAS also stated that they are unsure as to why the death certificate shows the FSM as divorced.  

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 considered.  However, SBP elections are made by category, not by name.  As long as the applicant was the FSM's spouse, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  Further, the divorce decree did not award her SBP; therefore, the applicant had no right to request a deemed election of former spouse coverage.

2.  There is no evidence to show the FSM voluntarily requested that his SBP coverage be changed to former spouse coverage.

3.  There is evidence to show the FSM remarried and his spouse, (Bxxxxx), at the 1-year anniversary of their marriage, would have 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.  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 as of the date of his death.

5.  The evidence presented is insufficient to grant the applicant the relief requested.  However, she 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 her.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20110020032



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ABCMR Record of Proceedings (cont)                                         AR20110020032



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