IN THE CASE OF:	  

		BOARD DATE:	    29 October 2013

		DOCKET NUMBER:  AR20130000571 


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:

The applicant defers her request for reconsideration to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the records of the applicant's deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce and the SBP annuity be paid to her.

2.  Counsel states, in effect:

	a.  The Board previously twice denied the applicant's request because the FSM did not change his SBP election from "spouse" to "former spouse" and the applicant did not deem the election within one year of her divorce.  The Board also stated that since the FSM remarried, it could not act to terminate the FSM's widow's right in the SBP annuity because doing so would deprive the widow of a property interest without due process of the law:

	b.  The Board also stated if the applicant were able to submit a certified mail receipt that locked down the timelines of her alleged deemed election request, she may request reconsideration.  Otherwise, she would have to provide a signed and notarized statement from the FSM's widow relinquishing 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 widow as a party, declaring that she (the applicant) is the rightful beneficiary of the FSM's SBP annuity. 
	c.  The applicant obtained a court order as well as a signed and notarized statement from the FSM's widow who has agreed to relinquish her right to the SBP. 

3.  Counsel provides a final consent judgment, dated 26 November 2012, and the widow's signed/notarized statement.

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 AR20100018848, on 8 March 2011, and Docket Number AR20110022493, dated 14 August 2012. 

2.  The applicant provides, through counsel, a court order and a notarized statement from the FSM's widow relinquishing her right to the SBP.  This is considered new evidence which was not previously considered by the Board.  

3.  The FSM and Nancy, the applicant, were married on 1 October 1965. 

4.  Having prior enlisted service, the FSM's records show he was appointed as a Reserve commissioned officer of the Army and entered active duty on 26 August 1966.  

5.  He was released from active duty on 30 June 1975 and he subsequently served in a variety of assignments in the U.S. Army Reserve and the Army National Guard.  He attained the rank of lieutenant colonel (LTC). 

6.  On 10 October 1987, he submitted a DD Form 1883 (SBP Election Certificate) wherein he indicated he was married to Nancy (the applicant) and they had dependent children.  He elected to provide an immediate Reserve Component SBP (RCSBP) annuity, option C, for "spouse" coverage based on the full amount.  His spouse concurred.

7.  On 15 January 1998, the FSM and the applicant were divorced.  Their divorce decree stipulated that she would be entitled to the survivor annuity payments and that, if requested to do so by the Defense Finance and Accounting Service (DFAS), the FSM would cooperate and submit all election forms necessary to ensure the applicant's entitlement to payment under the SBP.  

8.  There is no indication he notified DFAS of his divorce within 1 year or that he submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of his divorce. 
9.  By letter dated 27 April 1998, the Defense Finance and Accounting Service (DFAS) responded to a request from the applicant for a portion of the FSM’s retired pay.  DFAS informed her she must submit a certificate copy of the Final Judgment and Decree of Divorce.

10.  By letter dated 4 September 1998, the applicant sent a letter to DFAS that stated, “This letter is a request for deeming me election as a former spouse beneficiary for the Survivor Benefit Plan of [the FSM] as stated in the enclosed certified copy of our divorce decree.”

11.  By letter dated 15 September 1998, DFAS sent a letter to the applicant that stated, “We have received your application for a portion of the retired/retainer pay of the above-named member as a division of property under the Uniformed Services Former Spouses’ Protection Act (10 U.S.C § 1408).  All requirements under the Act and Regulations have been met…”  This letter did not mention the SBP.

12.  On 20 April 2004, the FSM married Deborah.  

13.  On 20 August 2004, he submitted a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated he was married to Deborah and he elected "spouse" SBP coverage based on the full amount.  

14.  On 3 November 2004, the FSM retired and was placed on the Retired List in his retired grade of LTC.

15.  On 27 April 2010, the FSM died.  His death certificate shows he was married to Deborah.  

16.  DFAS established an SBP annuity for Deborah.  

17.  Counsel provides a final consent judgment from the Superior Court of Habersham County, State of Georgia.  It essentially states that the court reviewed the widow's affidavit and she relinquishes her right to all future military survivor benefits of the FSM in favor of the applicant.  The widow was ordered to cooperate with the U.S. military, the ABCMR, DFAS, and DOD in carrying out her responsibilities.  

18.  Counsel also provides a signed and notarized statement from the FSM's widow, Deborah, who states under oath that she is aware that the FSM's SBP benefits were awarded to the FSM's former spouse, Nancy, according to their divorce decree.  Subsequent to his death, she began receiving the SBP benefits. She hereby relinquishes all right she may have in and to the SBP benefits of the FSM in favor of the FSM's former spouse, Nancy, so that payments may be made as contemplated by the Superior Court of Habersham County order.  

19.  By email dated 22 October 2013, counsel for the FSM’s widow stated the understand and acknowledge that an indebtedness will be created as a result of the correction of the FSM’s records and that DFAS may seek reimbursement from the FSM’s widow.

20.  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.

21.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (to include Reserve members).

22.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if he or she dies before age 60 but delay payment of it until the date of the member's 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon his or her death if before age 60.  

23.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of USFSPA relating to 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM married Nancy, the applicant, on 1 October 1965.  Upon receiving his 20-year letter, he elected "spouse" RCSBP coverage.  

2.  The FSM and Nancy were divorced on 15 January 1998.  His divorce decree stipulated that his former spouse would be the beneficiary of his SBP and that if requested to do so by DFAS, the FSM would cooperate and submit all election forms necessary to ensure the applicant's entitlement to payment under the SBP.

3.  SBP and/or RCSBP 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.  Nevertheless, he was required to make a "former spouse" election, if permitted, as stipulated in their divorce decree.  He did not do so within 1 year of their divorce.  

4.  Although there is no definitive evidence that the applicant’s 4 September 1998 was received by DFAS, that letter indicated she was making a request for a deemed election of the SBP.

5.  The FSM remarried on 20 April 2004 and his widow, Deborah, obtained a vested interest in the SBP on their first anniversary.  When he died on 27 April 2010, an SBP annuity was established in her name.  

6.  Counsel submits a court order and a notarized statement wherein the FSM's widow now relinquishes any entitlements to her deceased husband's SBP in favor of the former spouse.  The court order is problematic in that it states the FSM's widow has relinquished any and all right and entitlement she may have with respect to all future military survivor benefits of the FSM in favor of the applicant.  However, by email dated 22 October 2013 counsel for the FSM’s widow indicated that they understood a correction to the FSM’s records would create a debt for his widow.

7.  Therefore, it would be appropriate at this time to show that DFAS accepted the applicant’s 4 September 1998 letter as a timely request for a deemed election of the SBP.

BOARD VOTE:

__X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decisions in Docket Number AR20100018848 dated 8 March 2011 and Docket Number AR20110022493 dated 14 August 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a. showing DFAS accepted the applicant’s 4 September 1998 letter as a timely request for a deemed election of the SBP; and

     b. paying the applicant the SBP annuity retroactive to the day after the FSM’s death.



      _______ _  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)                                         AR20130000571





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ABCMR Record of Proceedings (cont)                                         AR20130000571



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