IN THE CASE OF:	  

		BOARD DATE:  16 July 2013

		DOCKET NUMBER:  AR20120022197 


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, in effect, reconsideration of her earlier request that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage. 

2.  The applicant states:

	a.  On 17 August 2012, she called the Defense Finance and Accounting Service’s (DFAS) toll-free number about the 256 months of annuity that was deducted from the FSM's monthly check in the amount of $124.66 a month up to the time he died on 29 July 2011.  The Military states she is not entitled to continue to receive his retirement after being married for 19 years and 11 months.  The FSM continued to have the $124.66 deducted from his check on a monthly basis so she would be entitled to continue to receive spousal support for when the day came he was to pass away.  Due to Bxxxxn L. Hxxxy being added as a beneficiary showing "Wife," this action has denied her (applicant's) benefits to continue to receive her spousal support.  Per the military they (she and the FSM) were to notify them within a couple months of their divorce to continue spousal support for her.  The military was notified of the divorce because they had to make arrangements when it came to child support and spousal support to come directly to her because she kept their two kids here in California full time while the FSM went back to Colorado.  There should be a record of all this with the military.

	b.  As for the annuity and there being a record of Bxxxxn L. Hxxxy being married to the FSM, there is no record of the FSM and Bxxxxn L. Hxxxxy ever being married.  In the last 6 years of his life, the FSM was not in a relation with Bxxxxn L. Hxxxy; he was in a steady relationship with Mxxxe Fxxd.  Colorado does believe in common law marriage but the FSM had never stated or introduced to her or his/their children or any family and friends there in Colorado that Bxxxxn L. Hxxxy was his wife.  There was no evidence showing the FSM and Bxxxxn had a common law marriage through bank accounts, property rentals, and filing of joint tax returns.  Additionally, Bxxxxn had never taken or used the FSM's tax returns from 2006 to 2009 that clearly state he filed his tax return as "Single." 

	c.  With all this being said, her divorce from the FSM states she is not responsible for any of his finances (this is notated on page 8, lines 11 through 14 of their divorce papers).  Per the military, she was entitled to $8,975.52 from 1 June 2006 to 11 June 2011 and by law the military was only allowed to go back 6 years on back pay.  She was only paid $3,115.08 because the remaining $5,374.64 was paid out as a garnishment to one of the FSM's debtors.  Since she is not entitled to the annuity, she feels by the divorce decree she is entitled to the $5,374.64 since the divorce papers do state that neither party would be responsible for each other's debts at that point and thereon after (page 10, line 12). 

3.  The applicant provides:

* 2006, 2007, 2008, 2009, 2010, and 2011 state tax return
* FSM January 2011 Retiree Account Statement
* FSM’s certificate of death
* Marriage certificate
* Divorce decree

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 AR20110020032, on 5 June 2012.

2.  The applicant provides a new argument which was not previously considered by the Board.  

3.  The FSM enlisted in the Regular Army on 18 September 1967.  He and Barxxxx, the applicant, were married on 18 July 1970.  The FSM 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. 
4.  On 7 July 1989, in connection with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Barxxxx and they had dependent children.  He elected SBP coverage for "spouse and children" based on the full amount.  

5.  He retired on 30 September 1989 and he was placed on the Retired List in his retire rank/grade of SFC/E-7 on 1 October 1989.  

6.  On 19 June 1990, the FSM and applicant were divorced.  Their divorce decree is silent with respect to the SBP.  Additionally, their divorce decree stipulated that each party would be awarded half of the military retirement benefits received.  

7.  There is no indication the FSM was required to or changed his SBP coverage to former spouse with one year of his divorce.  

8.  The FSM died on 29 July 2011.  His death certificate states he was "divorced" at the time of death. 

9.  The FSM's Retiree Account Statement as of 1 March 2011 shows he has "spouse only" SBP coverage and he was paying premiums at the rate of $124.66 per month.  This statement shows the name "Bxxxxn L. Hxxxy," as his wife, as the arrears of pay beneficiary.  

10.  It appears the applicant corresponded with DFAS regarding her entitlement to the SBP annuity.  By letter, DFAS officials notified her that she was not entitled to the SBP annuity because the FSM did not change his SBP election from spouse to former spouse. 

11.  In May 2012, DFAS advised the Board that an annuitant package would be sent to "Bxxxxn L. Hxxxy."

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

13.  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.

14.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
15.  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.

16.  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 raises two issues in her application:  reconsideration of her earlier request for entitlement to the SBP annuity (although she concedes she is not entitled to it) and the amount of retired pay monies she is entitled to as a result of her divorce from the FSM.  

2.  With respect to the SBP portion:  

	a.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of death, any SBP benefits would be paid to the beneficiary in effect at the time of death (his current spouse (widow), not his former spouse) if they had been married for at least 1 year. 

	b.  The divorce decree did not obligate the FSM to change his election.  As such, the FSM did not make a former spouse election within 1 year of their divorce.  A change in the SBP beneficiary would have been a strictly voluntary action on the part of the FSM absent a provision in the divorce decree, which the evidence of record shows he did not make.  Additionally, there is some evidence to show the FSM remarried and his widow, Bxxxxn L. Hxxxy, at the 1-year anniversary of their marriage, would have acquired a vested interest in the SBP as the FSM's legal beneficiary. 

	c.  As previously stated, the Board may not act to terminate the widow's rights in the SBP annuity by granting the applicant the SBP, as doing so would deprive the FSM's widow of a property interest without due process of law.  She would have to provide a signed and notarized affidavit from the FSM's widow relinquishing her rights in the SBP in favor of her or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's widow as a party, declaring that she is the rightful beneficiary of the FSM's SBP annuity as of the date of his death.

3.  As far her entitlement to the proper amount of retired pay which was reduced due to garnishment to one of the FSM's debtors, regretfully, this is neither a military record that the Board may correct nor is it within the purview of this Board.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20110020032, dated 5 June 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)                                         AR20120022197





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022197



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1