IN THE CASE OF: 

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120006992 


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, reinstatement of her beneficiary status under the Survivor Benefit Plan (SBP) that was granted to her by her deceased former spouse, a former service member (FSM), in their divorce decree. 

2.  The applicant states, in effect, upon their divorce in 2006, she was awarded the SBP annuity in accordance with a court order; however, she was unaware she needed to change it to "former spouse" coverage.  She claims it was truly the FSM’s intent to comply with the court order since she was still listed as the beneficiary upon his death.  She further states another person, although now deceased, may be listed as the FSM’s spouse; however, the marriage was annulled because at the time, the FSM and she were still married.    

3.  The applicant provides:

* State of North Carolina Equitable Distribution of Wealth
* Letter from the FSM
* State of Arizona Decree of Dissolution of Marriage
* DD Form 2656-7 (Verification for Survivor Annuity)
* State of Arizona Certificate of Death






COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a counsel, he did not render a request on the applicant's behalf. 

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The FSM served in a variety of stateside and/or overseas assignments.  He attained the rank/grade of chief warrant officer two.  He and the applicant were married on 22 June 1973.

2.  The FSM completed a DA Form 4240, dated 29 June 1993, in connection with his pending retirement wherein he indicated he was married to the applicant.  The FSM elected spouse and dependent children SBP coverage based on the full amount.

3.  On 30 June 1993, the FSM retired for length of service and he was placed on the Retired List effective 1 July 1993.

4.  On 25 April 2002, the FSM and the applicant entered into an Equitable Distribution Order (EDO).  Item 4 of their agreement decreed "the defendant (the FSM) is ordered to maintain the SBP on his pension naming the Plaintiff (the applicant) as beneficiary."

5.  On 7 December 2006, the Superior Court of Maricopa County, State of Arizona, ordered and decreed that the marriage contract between the FSM and the applicant be dissolved.

6.  There is no evidence the FSM notified DFAS of the divorce or changed his SBP coverage from spouse to former spouse coverage.  Additionally, there is no indication the applicant notified DFAS of her divorce or sought a deemed election.

7.  The FSM died on 20 November 2011.  His death certificate indicates he was married at the time of death.



8.  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.

9.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

10.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

11.  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.

12.  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 evidence of record shows the FSM elected SBP spouse and dependent children coverage upon retirement.  He and the applicant entered into an EDO on 25 April 2002.  The order was incorporated into their dissolution of marriage in December 2006.

2.  Their EDO stipulated the applicant would be the designated beneficiary of his SBP.  However, there is no indication the FSM submitted the necessary forms to change his SBP election from spouse to former spouse within 1 year of their divorce.  The applicant also failed to request a deemed election for former spouse coverage within 1 year of their divorce.
3.  The FSM designated the applicant as beneficiary and continued to pay SBP premiums until his death.  The evidence clearly shows the FSM's and applicant's divorce decree stipulated the applicant would remain the beneficiary of the FSM's SBP.  

4.  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 death, any SBP benefits would be paid to the beneficiary in effect at the time of death.  It appears he remarried as evident from his death certificate and therefore his new spouse, not his former spouse, would be the beneficiary if they had been married for at least 1 year.  The applicant contends the FSM’s marriage to that spouse was annulled; however, she provides no evidence to show that was so.

5.  However, the ABCMR may not act to terminate the current spouse's right in the SBP annuity by granting the applicant the SBP, as so doing may deprive the current spouse's 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 current 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.

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)                                         AR20120006992



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ABCMR Record of Proceedings (cont)                                         AR20120006992



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