IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20110024481 


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 earlier request for correction of her deceased former husband's records, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse.

2.  The applicant states:

	a.  she now provides a notarized statement from the FSM's widow renouncing her right to an SBP annuity as indicated in the "Discussion and Conclusions" section of the original Record of Proceedings; and

	b.  contrary to the Army Board for Correction of Military Records (ABCMR) determination indicating "the evidence presented does not demonstrate the existence of probable error or injustice," denial of an SBP annuity is an injustice given that her alimony was reduced by the SBP premiums since the time of her divorce confirming that she paid for this benefit that she has not been able to receive.

3.  The applicant provides:

* two self-authored statements
* FSM's widow's notarized statement
* final judgment and decree of divorce
* separation agreement
* Armed Forces Services Corporation Family Information Record
* Defense Finance and Accounting Service (DFAS)-Indianapolis 
Form 20-11A (Retired Annuitant Pay Statement)
* eleven DFAS-Cleveland Forms 7220/148 (Retiree Account Statement)
* widow's statement, dated 27 August 2010
* DD Form 2627-7 (Verification for Survivor Annuity)
* FSM's death certificate

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 ABCMR in Docket Number AR20100023708 on 14 April 2011.

2.  The applicant submits a notarized sworn affidavit from the FSM's widow, dated 15 November 2011, as new evidence which requires consideration by the Board.

3.  The FSM and the applicant were married on 4 May 1972.

4.  The FSM's military records show that after having prior enlisted service, he was appointed as a Reserve commissioned officer in the rank of second lieutenant and entered active duty on 19 May 1978.  He was promoted to the rank and grade of major (MAJ)/O-4 on 1 January 1990. This is the highest grade he held.

5.  The FSM and the applicant entered into a separation agreement on 24 May 1994 whereby the applicant would be designated as the SBP beneficiary as long as she did not initiate an action of divorce.

6.  An amendment to the separation agreement, dated 9 September 1996, changed the SBP language to read, "wife shall remain designated as beneficiary of the SBP after the parties divorce."

7.  On 30 October 1996, the County of Clayton Superior Court, State of Georgia, approved the terms of the 24 May 1994 separation agreement as amended on 9 September 1996 and incorporated them into the final judgment and decree of divorce.

8.  The FSM retired from active duty on 31 May 1997.  He completed 20 years, 4 months, and 5 days of creditable active duty service.

9.  The FSM died on 25 April 2010.  DFAS records show his SBP coverage designation at the time of his death was still "spouse only" and the FSM's widow is now the legal beneficiary of the SBP annuity.

10.  During its original review of the case, the Board found that the FSM failed to change his SBP election to "former spouse" subsequent to the applicant's and the FSM's divorce, and the applicant failed to submit a deemed election within the 1-year time frame established by law.  Further, there was no evidence to show the applicant attempted to clarify her SBP entitlement at any time prior to the FSM's death.

11.  The Board noted that equity considerations would normally be entertained in this case given that the FSM clearly agreed to provide the applicant with SBP coverage after their divorce.  However, based on his remarriage, his widow is listed as the lawful SBP beneficiary.  While the Board recognized the divorce decree awarded the SBP to the applicant and specifically ordered the FSM to timely execute all documents necessary to maintain her as the designated SBP beneficiary, because he failed to do so and remarried, his widow was the lawful beneficiary for SBP benefits.

12.  The Board further determined it cannot divest the FSM's current widow of her interest in the SBP without an order from a State court of competent jurisdiction over the divorce proceedings of the applicant and the FSM.  Such court action would have to include the FSM's widow as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, the applicant could reapply to this Board for reconsideration.

13.  In the alternative, the applicant was informed that the Board may also reconsider her request if she obtained a notarized sworn affidavit from the FSM's widow irrevocably renouncing her right to the SBP annuity.  In the interim, there was insufficient evidence to grant the applicant's request and it was therefore denied by the Board.

14.  The applicant now submits a notarized sworn affidavit from the FSM's widow, dated 15 November 2011, wherein the FSM's widow irrevocably renounced her right to the SBP annuity of her late husband.

15.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

16.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 request for reconsideration of her earlier petition to receive an SBP annuity based on the death of her deceased former husband, an FSM, has been carefully considered and found to have merit.

2.  The new evidence provided by the applicant shows the FSM's widow renounced her right to the SBP annuity in a notarized sworn affidavit.  Based on the widow's determination to relinquish her rights to the SBP annuity, the settlement agreement entered into by the FSM and the applicant can now be adhered to and considered by the Board.

3.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for nearly his entire 20-year active duty military career.  The FSM and the applicant agreed to the terms of the marital settlement agreement which stipulated her entitlement to the FSM's SBP at her expense.  Therefore, in the interest of justice and equity, it would be appropriate to correct the FSM's record to comply with the divorce decree by providing SBP coverage for the applicant as a former spouse.


BOARD VOTE:

___X____  ____X __  ____X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR AR20100023708, dated 14 April 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant submitted a request for a deemed election to change the FSM's SBP spouse coverage to former spouse SBP coverage on 31 October 1996, the day after their divorce; and 

	b.  paying the applicant the SBP annuity retroactive to the day after the FSM's death.



      __________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)                                         AR20110024481



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ABCMR Record of Proceedings (cont)                                         AR20110024481



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