IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120015046 


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, the former spouse of a deceased former service member (FSM), requests, in effect, correction of the FSM's record to show he submitted a timely election for former spouse coverage under the Survivor Benefit Plan (SBP) and cancellation of a debt she incurred for SBP payments that were deemed improper.  She also requests a personal appearance before the Board.

2.  She states "SBP was granted then taken back."  She feels she should be receiving it.  She has been asked to repay the SBP payment she received, and she feels this is wrong.  The FSM sent in two letters requesting changes:  a request for Department of Veterans Affairs (VA) disability pay in lieu of retired pay and a letter requesting a change of his SBP election from spouse to former spouse.  

3.  She provides:

* self-authored statement
* letter from the Defense Finance and Accounting Service (DFAS)
* self-authored letter to DFAS
* two marriage certificates
* Final Decree of Divorce
* Agreement Incident to Divorce
* Certificate of Death
* SBP premium bill
* memorandum to DFAS from an office at Randolph Air Force Base, TX
* letter from DFAS to a Member of Congress
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 14 October 1987, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  In Part III (SBP Election), he indicated he was married with dependent children, and he elected spouse-only SBP coverage based on the full amount of his retired pay.  The form shows he was married to P.J.K., the applicant, at the time.  

3.  On 22 October 1987, the FSM was retired for permanent physical disability.  

4.  The applicant provides several documents in support of her application.

	a.  A Final Decree of Divorce shows she and the FSM were divorced on 31 July 1991.  The Final Decree of Divorce is silent on the matter of the SBP.  

	b.  A marriage certificate shows she remarried the FSM on 25 June 1992.  

	c.  An Agreement Incident to Divorce, signed by the FSM and the applicant on 11 May 1994, provides the terms of their second divorce, which included the applicant's right to all benefits payable as beneficiary pursuant to the FSM's SBP.  

	d.  An SBP premium bill, dated September 2000, shows the FSM was paying SBP premiums.  The bill does not indicate the election upon which his monthly SBP premium was based.  

	e.  A memorandum to DFAS from an office at Randolph Air Force Base, TX, requests correction of the FSM's records to reflect SBP coverage for the applicant as his former spouse.

	f.  A Certificate of Death shows the FSM died on 31 October 2010.  The document shows he was married to P.S.H. at the time of his death.  
	g.  An undated letter from DFAS shows the applicant was informed she would receive SBP annuity pay effective 1 November 2010.

	h.  A undated letter from the applicant to DFAS shows she received a letter dated 26 June 2012 stating her waiver for repayment of SBP was not granted.  She stated she disagreed with DFAS's decision.  She noted she had been notified DFAS had received all documentation needed to establish her SBP annuity, that the FSM had submitted a request to change her status from spouse to former spouse, and that the FSM had continued to pay SBP premiums.

	i.  A letter from DFAS to a Member of Congress, dated 17 August 2012, shows, in part, that DFAS informed the Member of Congress that after the applicant's SBP annuity was established, DFAS received additional information showing she was not the eligible beneficiary.  Because she was not entitled to annuity payments, a debt was established.  DFAS noted the FSM had elected former spouse coverage after his first divorce from the applicant, but neither he nor the applicant had submitted a request for a former spouse election within 1 year of their second divorce in 1994.  Therefore, the applicant was not entitled to be the beneficiary of the FSM's SBP.  

5.  The applicant provides a self-authored statement in which she states, in part:

* she understands the FSM did not sign a paper to reinstate SBP after their second divorce
* if the decision [that she was not entitled to be the FSM's SBP beneficiary] had been made before she started receiving the benefit, she would have been angry with him for making the mistake
* she thinks the mistake is in the system
* the FSM sent in a letter of correction in January 2001 long after their divorce, and if this was too late, he should have been notified and the payment deducted from his account should have been stopped
* the FSM intended her to be the SBP beneficiary knowing she would need it to live on and he tried to make the correction the best way he could
* she does not see how the documents sent in [requesting a change in election to former spouse] carry no weight

6.  In an e-mail dated 12 April 2013, a DFAS staff member confirmed the applicant's debt has been waived.  

7.  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.  Elections are made by category, not by name.  

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.

9.  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.

10.  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.

11.  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.

12.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for a fair and impartial consideration of the case without such an appearance.

2.  The available evidence indicates the FSM elected spouse SBP coverage at retirement.  He divorced the applicant, they remarried, and they divorced once again.  There is no independent evidence that the spouse coverage was ever changed to former spouse coverage within the one-year time period required by statute subsequent to either divorce.  

3.  SBP elections are made by category, not by name.  Accordingly, because the FSM died with a spouse-only SBP election in effect, his widow is the lawful beneficiary of his SBP annuity.  The ABCMR will not take any action that would cause the lawful beneficiary to be ineligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

4.  The ABCMR may not divest the FSM’s widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM’s widow as a party in order to protect her proper interest and rights.  If the court determines the applicant is the proper SBP beneficiary, she may apply to the ABCMR for reconsideration.

5.  It is unfortunate that erroneous payment of the SBP annuity has created a debt for the applicant; however, the fact remains that, by law, she was not entitled to the SBP annuity payments she received.  However, DFAS officials have notified the Board that this debt has been waived.  

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)                                         AR20120015046





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120015046



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1