IN THE CASE OF:	  

		BOARD DATE:	 27 June 2013 

		DOCKET NUMBER:  AR20120019507 


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 former service member (FSM), requests correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

	a.  she was named the beneficiary of the FSM's survivorship annuity based on their 16 years of marriage and is named as such in their divorce decree.

	b.  she feels strongly that her "Court Order Acceptable for Processing Retirement Benefits" is a legal document that should be upheld in the Retired and Annuity Pay Department over and above 1 year of the divorce, if the military person has not yet retired.  She spent 100% of her 16 years of marriage as a military spouse, in his pursuit of his military career of 20 plus years on active duty and in the Reserve.

	c.  the person who is named for his SBP benefits is the same person he moved into their home from the Ukraine while they were separated but married.

	d.  they were married in October 1982 and divorced in October 1998.  The court order was a formal written understanding between them concerning their respective rights and their duties to each other.  She made a deemed election for SBP on 28 March 2011.  She was not aware that she needed to mail the court order in within a year of the divorce.  She depended too heavily on the FSM's word that he would put her on his retirement paperwork when he received his retirement package at age 59 or 60. 

3.  The applicant provides:

* Court order renewing judgment, dated 27 October 2003
* Divorce decree
* Letter from a Member of Congress, dated 6 July 2012
* Letter from the Defense Finance and Accounting Service (DFAS) to a Member of Congress, dated 27 June 2012
* Deemed election for SBP, dated 29 March 2011 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 11 November 1950.  He married the applicant in October 1982.

2.  Having prior enlisted service and commissioned service in the Regular Army, he was commissioned as a captain in the Army National Guard (ARNG) on 
22 November 1988.  On 15 May 1998, he was honorably discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve).

3.  He and the applicant divorced on 22 October 1998.  The divorce decree states the applicant is awarded all survivor benefits on the FSM's military retirement.

4.  There is no evidence the applicant made a request for a deemed former spouse election within 1 year of their divorce.

5.  The FSM married Diana on 17 January 2000.

6.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 6 January 2010, shows the FSM elected spouse and children coverage, full base amount upon applying for his non-regular retirement.

7.  The applicant was not named as a former spouse beneficiary.

8.  The FSM was placed on the Retired List, effective 11 November 2010.

9.  The applicant provides a copy of her deemed election for the SBP, dated 
29 March 2011.


10.  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 family members.  Elections are made by category, not by name.

11.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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 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.

14.  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 applicant's contentions and her 2011 deemed election for SBP were noted.  However, there is no evidence to show the applicant made a request for a deemed former spouse election within the statutory 1-year time limit (October 1999).  Accordingly, DFAS accepted the FSM's election of spouse and child coverage.

2.  Evidence shows the FSM remarried in 2000.  Although it is unclear whether the FSM made a spouse election or any RCSBP election at all when he was issued his 20-year letter, his wife at the time of his attaining 60 years of age and entitlement to receive his non-regular retirement pay became his SBP beneficiary.
3.  The ABCMR may not act to terminate the rights of the FSM's spouse in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM's spouse of a property interest without due process of law.  The applicant would have to provide a signed and notarized affidavit from the FSM's spouse wherein she knowingly and voluntarily relinquishes her rights in the SBP in favor of the applicant or obtain an order from a State court of competent jurisdiction in an action joining the FSM's spouse as a party, declaring the applicant as the rightful beneficiary of the FSM's SBP annuity, and divesting his current spouse of her interest.

4.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM's spouse or an order from a State court of competent jurisdiction that divests the FSM's current spouse 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)                                         AR20120019507



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ABCMR Record of Proceedings (cont)                                         AR20120019507



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