IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20110020161 


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

2.  The applicant states, in effect, that they were married in 1964 and he retired from the Army on 31 December 1976.  They remained married until their divorce on 21 June 1993.  She points out that their divorce decree states she would be the irrevocable beneficiary of any SBP entitlements.   

3.  The applicant provides copies of a letter she dispatched to the Defense Finance and Accounting Service (DFAS), dated 23 July 2011; her divorce decree; the FSM’s Leave and Earnings Statement (LES), dated 29 January 2011; the FSM’s DD Form 214 (Report of Separation from Active Duty); and a letter from DFAS denying her application for payment of an SBP annuity, dated 
27 September 2011.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 21 January 1957 and remained in an active duty status through a series of continuous reenlistments.  He married the applicant on 23 October 1964 and he was promoted to the pay grade of E-7 on 19 July 1973.  On 31 December 1976 he was retired due to sufficient service for retirement and he was transferred to the Retired List effective 1 January 1977.  He had served 20 years and 10 days of active service.
2.  The FSM’s DA Form 4240 (Data for Payment of Retired Army Personnel), dated 26 November 1976, shows he enrolled in the SBP for spouse only coverage, full base amount.

3.  The FSM and the applicant divorced on 21 June 1993.  The divorce decree states the FSM shall name the applicant as the irrevocable beneficiary under the Armed Service SBP and continue to remain the beneficiary as his former spouse under that plan.  

4.  Although the applicant has not provided a death certificate for the FSM, a copy of the obituary was obtained through public records by the staff of the Board which indicates the FSM died on 16 April 2011 and he was survived by a spouse.

5.  Information received from DFAS indicates the FSM paid into the SBP for 360 months and his account was paid up.  However, there was no evidence that he had divorced or made a former spouse election under SBP. 

6.  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. 

7.  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.

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

9.  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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, SBP elections are made by category, not by name.  As long as the applicant was the FSM’s wife she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary unless the FSM or the applicant submitted a former spouse election to DFAS.  

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.  Although there is no legal evidence to show the FSM remarried, there is evidence to show that he was survived by a spouse other than the applicant. Accordingly, at the 1-year anniversary of their marriage his spouse acquired a vested interest in SBP as the FSM's legal beneficiary.     

4.  The ABCMR may not act to terminate the current spouse's rights by granting the applicant the SBP, as so doing would deprive the FSM’s spouse of a property interest without due process of law.  The ABCMR would only be empowered to correct the FSM’s records to grant the applicant an SBP annuity under one of two circumstances:

   a.  The FSM’s spouse executes a signed notarized affidavit voluntarily relinquishing her rights to the SBP annuity in favor of the applicant.  

   b.  The applicant obtains an order from a State Court of competent jurisdiction, in an action joining the FSM’s spouse as a party, declaring that the applicant 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, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s spouse or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant.  



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)                                         AR20110020161



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ABCMR Record of Proceedings (cont)                                         AR20110020161



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