IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120007746 


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 change the records of her former husband, a deceased former service member (FSM), to show he elected former spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of their divorce.

2.  The applicant states she has two additional pieces of information that were not considered in the Board's previous decision:  (1) the FSM's Retiree Account Statement (RAS), dated 2 December 2008, showing the FSM's spouse's date of birth (DOB) as 29 March 1957 which is her DOB and (2) the FSM married his new spouse in late August 2009 and he died on 22 July 2010 before he had been married 1 year which makes his new spouse ineligible for SBP benefits.  She states the fact that her DOB is listed on his RAS is proof that he thought she was his beneficiary.  Accordingly, this leaves the FSM with no beneficiary unless the Board chooses one and corrects his records to reflect the Board's decision.

3.  The applicant provides a copy of the FSM's Retiree Account Statement, dated 2 December 2008.

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 AR20110010272 on 12 January 2012.

2.  The FSM enlisted in the Regular Army on 31 July 1975 and he was honorably retired on 14 August 1984 and placed on the Temporary Disability Retired List (TDRL) in pay grade E-5.

3.  On 11 June 1984, the FSM elected to participate in the SBP for spouse and dependent children coverage for his full base amount.

4.  On 9 July 1986, he was removed from the TDRL and placed on the AUS Retired List due to permanent disability effective 10 July 1986.

5.  On 8 December 2008, the applicant and the FSM divorced in Jackson, Tennessee.  A review of the marriage dissolution reveals no language regarding the FSM's SBP benefits.

6.  The available records do not show the FSM ever made a voluntary election to change his SBP election from spouse and dependent children to former spouse coverage within 1 year after the divorce.  There is also no evidence to show the FSM notified the Defense Finance and Accounting Service of his divorce from the applicant or his subsequent remarriage.

7.  The RAS provided by the applicant, dated 2 December 2008, shows the FSM was paying for spouse-only coverage and records his spouse's DOB as 29 March 1957.  The FSM died on 22 July 2010 and his death certificate shows the name of his surviving spouse is not the applicant's.  There is no evidence corroborating the applicant's contention in his official records to show when the FSM remarried.

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.

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.

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 member was participating in the SBP 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 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 is received within 1 year of the date of the court order or filing involved.  When SBP is court-ordered, the former spouse may make a deemed election within 1 year of the divorce.  When SBP is not court-ordered, the retiree may make a written request to change spouse coverage to former spouse coverage voluntarily.  Otherwise, participation remains in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been considered and they appear to lack merit.

2.  There is nothing in the marital dissolution agreement that pertains to the FSM's SBP benefits and there is no evidence to show the FSM voluntarily elected to change his SBP election to former spouse within 1 year of their divorce as required by law.

3.  SBP elections are made by category, not by name.  The FSM and the applicant divorced in December 2008.  While he may have remarried, there is no evidence in the available records to show when he remarried or evidence to show he was married for 1 year prior to his death.

4.  In the absence of evidence to show the FSM made a former spouse election within 1 year of their divorce, there appears to be no basis to grant her request.

5.  However, the FSM's estate may have the basis for a claim with DFAS for SBP premiums paid from the time of the FSM's divorce until the date of his remarriage.



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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110010272, dated 12 January 2012.



      _______ _  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)                                         AR20120007746



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ABCMR Record of Proceedings (cont)                                         AR20120007746



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