IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20110022493 


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 reconsideration of her request to correct the records of her former spouse, a deceased former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant defers her comments to counsel.

3.  The applicant does not provide any additional documents with her application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s request to correct the records of her former spouse, a deceased former service member (FSM), to show he changed his SBP coverage to former spouse coverage.

2.  Counsel states, in effect, that the Board’s conclusion in her previous request is squarely contrary to the evidence of record and prevailing law and that in order to receive SBP benefits as a former spouse, one of two requirements must be met.  She goes on to state that the FSM must designate the former spouse in writing within 1 year of the divorce and the divorce document must require the service member to provide his or her former spouse SBP benefits.  In the applicant’s case the second of those requirements has been met.  She goes on to state that the applicant was married to the FSM for the entirety of his career and gave birth to their three children and at the time of their divorce, the Military Retired Pay Manual did not specify a particular form or directive for election or specifically provide guidance for making a deemed election.  However, it did specifically allow designation of a former spouse as beneficiary at the time of divorce and not only did the applicant send a letter deeming her election, there is copious evidence of otherwise substantial compliance with the deeming election requirement.

3.  Counsel goes on to state that it is of primary importance in the consideration of the claim of the applicant that her funds contributed to the cost of maintaining her survivor benefits by way of reduction of her share of the FSM’s retirement benefit.  The equity clearly rests with her and failure to correct this record would constitute a grave miscarriage of justice.  She also states that the SBP was very much a part of the negotiations in this divorce case and the applicant agreed to eliminate life insurance maintained by the FSM as a result of SBP coverage.  Counsel goes on to cite three court cases which set precedent for the Board to make the requested correction.  She also states that a demand is made for the immediate correction of the FSM’s records and payment to the applicant of all unpaid compensation due the applicant.

4.  Counsel provides a list of exhibits provided with her arguments.

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 AR20100018848, on 8 March 2011.

2.  The applicant married the FSM on 1 October 1965 and the FSM was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 26 August 1966.  He served on active duty until he was honorably released from active duty on 30 June 1975 and was transferred to the USAR.  On 10 October 1987, he made a Reserve Component SBP election of full spouse coverage.

3.  On 1 January 1988, he was honorably discharged from the Army National Guard in the rank of lieutenant colonel and was transferred to the Retired Reserve.

4.  The applicant and the FSM divorced on 15 January 1998 and the final divorce decree stated that the applicant was entitled to SBP payments and that, if requested by the Defense Finance and Accounting Service (DFAS), the FSM would cooperate and submit all election forms necessary to ensure the applicant’s entitlements to payments under the SBP. 
5.  The FSM remarried on 20 April 2004 and his records show that he elected full spouse coverage for his new spouse on 20 August 2004.  He was placed on the Retired List on 3 November 2004.  He died on 27 April 2010 and was still married at the time of his death.  Accordingly, his spouse at the time of his death was his beneficiary for his SBP benefits.

6.  The applicant applied to the Board to have the FSM’s records corrected to show an SBP beneficiary designation of former spouse in order for her to receive her SBP annuity.  As part of her application she provided a letter from DFAS dated 2 July 2010 indicating that there was no evidence of a former spouse election being made within 1 year of the divorce.  The Board determined that the FSM’s wife at the time of his death acquired a vested interest in the SBP as the FSM’s legal beneficiary.

7.  The Board determined that it could not act to terminate the current spouse’s right to the SBP annuity because it would deprive her of a property interest without due process of law.  The Board advised the applicant that she could reapply if she obtained 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.  The Board denied her request.

8.  The cases submitted by the applicant’s counsel purporting to require relief have been reviewed and have been found to be factually distinct from the case at hand.  

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 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.

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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The essence of the applicant’s case is one of factual sufficiency, not law.  It is not a question of whether the Board has the power to correct the record and it is not a question of whether her deemed election request substantially complied with the law’s requirements.  It is a question of whether her deemed election request was mailed and received at DFAS within the 1-year required by law.

2.  In the applicant’s case there is insufficient evidence to show that her request was mailed to DFAS within the 1-year requirement of law or that DFAS received it and erred in its further processing of her request.

3.  It is also noted that in 2004 the FSM made an election to add his current spouse as the beneficiary of his SBP and that in itself tends to indicate that the applicant’s deemed election request was never received by DFAS.

4.  Therefore, lacking sufficient evidence to show that her request for a former spouse election was mailed and received by DFAS within 1 year of the divorce, there appears to be no basis to grant relief in her case.

5.  The Board will not consider any further requests for reconsideration of this matter without new evidence.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction. 

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 AR20100018848, dated 8 March 2011.




      _______ _   _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)                                         AR20110022493





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ABCMR Record of Proceedings (cont)                                         AR20110022493



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