IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120008067 


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 correction of the records of her former spouse, a former service member (FSM), to show he elected former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states:

* She and the FSM entered into a separation agreement that shows he agreed to designate her as the beneficiary of his SBP
* She has been working outside the United States as a Government employee but she returned to the United States in November 2011
* She was unaware of the requirement to submit all the paperwork within one year of her divorce

3.  The applicant provides her separation agreement and divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 9 April 1970.  He and the applicant, Michelle, were married on 1 May 1993. 

2.  Having had prior service, the FSM was appointed as a Reserve commissioned officer and entered active duty on 16 December 1998.  He served in a variety of stateside or overseas assignments and he attained the rank of major (MAJ).  
3.  On 20 March 2008, the FSM and the applicant entered into a separation agreement.  The FSM agreed to designate the applicant as the beneficiary of his SBP and agreed to provide the appropriate military finance center retired pay office any necessary forms or other information to accomplish this designation. 

4.  On 12 December 2008, the FSM and applicant were divorced.  Their divorce decree was incorporated with their separation agreement. 

5.  On 2 April 2011, the FSM married La'K----

6.  On 31 October 2011, in connection with his request for retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated he was married to La'K----- and he had five dependent children: YEC, daughter, born 2 January 1996; CAH, stepdaughter, born 3 December 1995; CAR, stepdaughter, born 12 July 2010; NAR, stepson, born 19 November 2004; and CC, son, born 22 July 2011.  He elected SBP coverage for "spouse and children" based on the full amount.  

7.  The FSM retired on 29 February 2012 and he was placed on the Retired List in the rank of MAJ on 1 March 2012.  He completed over 23 years of creditable active service.

8.  There is no indication the FSM notified officials at the Defense Finance and Accounting Service (DFAS) of his 2008 divorce or made a former spouse SBP election.  Likewise, there is no indication the applicant deemed a former spouse election within 1 year of her divorce.

9.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 
An election, once made, was irrevocable except in certain circumstances.  

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 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM and applicant were married on 1 May 1993 and they were divorced on 12 December 2008.  Their separation agreement, incorporated into their divorce decree, stipulated that the FSM would designate the applicant as the beneficiary of his SBP.  He did not do so. 

2.  The FSM remarried on 2 April 2011 and he retired on 1 March 2012.  When he retired, he made an SBP election for "spouse and children."  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse, not his former spouse, if they have been married for at least 1 year.

3.  Notwithstanding the applicant's sincerity, the Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law.  The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current spouse renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction in which the current spouse was a party, divesting the current spouse of her interest in the SBP

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)                                         AR20120008067



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ABCMR Record of Proceedings (cont)                                         AR20120008067



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