IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022870 


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 the 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 did not know she had to file a claim within one year after the divorce, nor did her lawyer
* She was elected the SBP beneficiary in their divorce
* In the divorce settlement she had to give him 1/2 the value of their home and she would get 1/2 of his retirement until she dies
* She took out a loan for $50,000.00 which he got immediately
* They were married for 35 years
* He was in the Army National Guard for 23 years 
* He was a very angry alcoholic and took it out on her
* Their children suffered from his actions too
* She supported him throughout his military career
* The retirement money was awarded to her
* They divorced in 2005
* He has since remarried a very young woman
* He has cancer  




3.  The applicant provides:

* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Notification of Eligibility for Retired Pay at Age 60
* Standard Form 180 (Request Pertaining to Military Records)
* Statement from FSM requesting that the applicant receive continued SBP coverage, dated 3 November 2011
* A letter, dated 19 April 2011, from her attorney
* Amended court order, dated 22 September 2005
* Personal statement 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 24 June 1940.  He married the applicant on 
6 September 1970.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve (USAR), the FSM enlisted in the Army National Guard on 2 February 1975.  

2.  In April 1990, he received his notification of eligibility for retired pay at age 60. 

3.  The FSM's record contains a DD Form 1883 (SBP Election Certificate), dated 2 April 1990, which shows he enrolled in the SBP and elected spouse only coverage, full amount.   

4.  His records also contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 4 June 1999, that shows he elected spouse only coverage, full amount.  This form shows the applicant was the designated beneficiary for unpaid retired pay.

5.  He was honorably discharged from the Army National Guard in the rank of sergeant first class on 1 October 1993 and transferred to the USAR Control Group (Retired).  He was placed on the retired list effective 24 June 2000.

6.  The FSM and applicant divorced on 31 May 2005.  

7.  The applicant provided an Amended Qualifying Court Order, dated 
22 September 2005, which states:

	a.  "Survivor Benefit Plan ("SBP") Protection for Former Souse.  It is hereby Ordered that the Member shall maintain his election of the Former Spouse as the irrevocable beneficiary of the Member's SBP Annuity.  Such election shall remain in effect until and unless the Former Spouse predeceases the Member.  The full amount of the Member's retired pay shall be used as the basis for computing the Former Spouse's survivor benefit."

	b.  "The member shall execute any and all paperwork as may be required to effectuate said election.  In the event the Member fails to provide the aforementioned SBP coverage for the Former Spouse, the Former Spouse shall be deemed the irrevocable beneficiary of the Member's SBP to the same extent as set forth herein."  

8.  On an unknown date, the FSM married Danielle.

9.  The applicant provided a statement, dated 3 November 2011, from the FSM which states he requests the applicant, his former spouse, receive continued SBP coverage during her lifetime as the irrevocable beneficiary pursuant to the Amended Qualifying Court Order filed.  

10.  On 29 November 2011, the FSM died.  His death certificate shows he was married to Danielle.

11.  Records at the Defense Finance and Accounting Service show:

* the FSM did not submit his divorce decree with the spouse within the first year of their divorce
* Danielle is in receipt of the SBP annuity

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.  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.  There is evidence to show the FSM remarried and his spouse (Danielle) is currently in receipt of the SBP annuity.  At the 1-year anniversary of their marriage his spouse 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.  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)                                         AR20110022870





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022870



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1