IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120011898 


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 husband, a former service member (FSM), to show he elected former spouse coverage under the Survivor Benefit Plan (SBP) and payment of the SBP annuity based on his death.

2.  The applicant states:

* Although she and the FSM were divorced in October 2000, he voluntarily instituted her as the beneficiary of his SBP
* The FSM illegally canceled SBP coverage in June 2004 for her and did not substitute his current spouse
* It is her contention that once he reinstated her as a beneficiary, he could not revoke such coverage and that the only change he could make would be to substitute his current spouse
* His letter of revocation constitutes a lie of omission as he did not state in the letter that he previously made a voluntary former spouse election

3.  The applicant provides:

* Unsigned/undated letter from the FSM to the Defense Finance and Accounting Service (DFAS)
* Email exchange between her and DFAS
* Letter from the FSM to DFAS
* Marriage certificate and Divorce decree
* FSM's death certificate
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 2 April 1952.  He enlisted in the Regular Army on 30 August 1970.  He and the applicant, Jaxxxx, were married on 20 June 1971.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

2.  On 22 May 1991, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to the applicant and had two dependent children.  He elected "spouse and dependent children" SBP coverage based on the full amount. 

3.  He retired on 31 August 1991 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 September 1991. 

4.  On 10 October 2000, the FSM and applicant were divorced.  Their divorce decree indicates that a separation agreement, dated 7 June 1999, was incorporated into the divorce but this separation agreement is not available for review with this case.  The divorce decree itself is silent with respect to the SBP.

5.  On 2 February 2001, the FSM married Caxxxxx.

6.  On 2 July 2001, by email, the applicant communicated with DFAS and stated "My former spouse [Applicant] [Social Security Number] sent a letter in April of this year to assign me as his beneficiary for his SBP.  How can I find out if it was accepted and/or is there anything that I have to do also?"

7.  On 9 July 2001, an email response from DFAS - Retired Pay to the applicant stated "You are currently the benfy [beneficiary] for the SBP." 

8.  On 19 June 2004, by letter to DFAS, the FSM informed DFAS of his divorce and that he wanted his SBP stopped.  He indicated that his divorce did not require him to maintain SBP and all his children had reached age 18 and are not disabled.  He submitted a certified copy of his divorce decree.  

9.  On 9 February 2012, the FSM died.  His death certificate shows he was married to "Caxxxx" at the time of death.

10.  An email, dated 14 August 2012, from DFAS confirmed the FSM's SBP beneficiary is "Caxxxx." 
11.  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.  

12.  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.

13.  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.

14.  Title 10 U.S. Code, section 1448b allows a person to elect former spouse coverage on a purely voluntary basis without either court order or other written agreement. 

15.  Title 10, U.S. Code, section 1450(f)(1) permits a person to change his voluntary former spouse coverage to spouse or dependent child coverage. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 31 August 1991.  In connection with his retirement, he completed a DA Form 4240 wherein he elected "spouse and children" SBP coverage based on the full amount.   He and the applicant were divorced on 20 October 2000.  Their divorce decree did not obligate him to make a former spouse SBP election or stipulate that his former spouse, the applicant, would be named as a beneficiary of his SBP annuity.

2.  Although it appears the FSM at one made a voluntary election of former spouse coverage, it also appears that upon re-marriage he changed the coverage back to spouse coverage as allowed by statute.  While it is unfortunate that the applicant was not notified of the change, that failure did not void the change or prevent the SBP from being provided to the FSM's subsequent spouse. 


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 widow 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 widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the widow was a party, divesting her of her SBP interest.

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)                                         AR20120011898





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ABCMR Record of Proceedings (cont)                                         AR20120011898



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