IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110022113 


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, the widow of a deceased former service member (FSM), requests, in effect, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).

2.  She states:

* she had a divorce decree stating she was entitled to receive half of the FSM’s retirement pay
* she was under the understanding she would have to be notified and had to agree to be disenrolled from the SBP program, which she was not
* this is an injustice to wives of Veterans who are not briefed on this matter at discharge
* she was not notified by the Defense Finance Accounting Service (DFAS), or any other source, of the requirement to notify DFAS to make this request

3.  She provides:

* a DA Form 4240 (Data for Payment of Retired Army Personnel)
* a Department of Veteran Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* her marriage license
* the FSM's certificate of death 



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant and the FSM were married on 29 June 1981.

3.  The FSM’s military service records show that he enlisted in the Regular Army on 24 July 1973 and retired on 31 October 1991.  

4.  His record contains a DA Form 4240, dated 7 October 1991, which shows the following entries in:

   a.  Part V - Survivor Benefit Plan Election:

   (1)  Item 14, Are you married? - Yes;

   (2)  Item 14a, Do you have dependent children? - No;

		(3)  Item 15, Check the following to indicate the type of coverage you desire?- No blocks checked;

		(4)  Item 16, If Checked 15a, b, c, d, or e, do you elect to provide an annuity based on full amount of retired pay or on a reduced portion of retired pay? - Full;

		(5) Item 17a, Name of Spouse/Former Spouse – Applicant is named; and

   b.  Part VI - (Certification), is attested to by FSM’s signature. 
		
5.  The applicant’s Final Decree of Divorce, dated 20 October 2005, shows in paragraph 7 that the FSM will maintain the applicant as beneficiary on his SBP.

6.  There is no indication the FSM or the applicant notified DFAS within 1 year of his divorce to change his SBP election to former spouse coverage.  

7.  The FSM died on 21 August 2011.  His death certificate shows he was married to 
D---a T----s B—b, not the applicant, at the time of his death.

8.  On 10 November 2010, a staff member at DFAS verified that according to their records the applicant had spousal coverage from his retirement to his death, but was unable to locate any documentation showing he had remarried.  DFAS records also showed the applicant applied for SBP benefits.  However, the application was declined due to the fact there was no documentation showing she requested a deemed election within the allotted timeframe of 1 year from the date of divorce.  There was also no documentation showing the FSM elected former spouse coverage within the allocated timeframe.

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.  Elections are made by category, not by name (emphasis added).  An election, once made, is irrevocable except in certain circumstances.  

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

13.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit (emphasis added).  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be entitled to SBP benefits based on the death of her former husband, the FSM.

2.  The available evidence shows that at the time of the FSM's retirement in 1991, the FSM elected to participate in the SBP for spouse only coverage based on full amount of his retired pay.  Years later, he and his spouse were divorced.  The divorce decree states that the FSM will maintain the applicant as beneficiary on the FSM’s SBP.  However, the FSM failed to make a former spouse election within 1 year of their divorce and the applicant failed to submit a request for a deemed election.

3.  Furthermore, the FSM later remarried.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of his death (his widow), not his former spouse, if they were married for at least 1 year. 

4.  The ABCMR may not correct the FSM's records to effectively change his election to former spouse, for so doing would deprive his widow of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed and notarized declaration from his widow renouncing any interest in the SBP annuity or a court order divesting the widow of her interest effective no later than the day prior to the FSM's death.

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)                                         AR20110022113





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022113



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1