IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20130001261 


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 reconsideration of her earlier request for correction of the record of her former husband, a former service member (FSM), to show he elected former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states:

* she did not have counsel for her previous application
* she and the FSM did not have a son and she knew nothing about a son
* she and the FSM were married for 30 years and had two daughters
* she notified the Defense Finance and Accounting Service (DFAS) in writing and provided them with a copy of their divorce decree; however, she was never notified of her coverage
* someone else is not entitled to her SBP 
* she was with the FSM at all his duty stations

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, AR20120005395, dated 11 September 2012
* self-authored statement
* two letters from DFAS
* three certificates


* letter from Headquarters, U.S. Commander, Berlin and U.S. Army Berlin Supply and Services Division, dated 4 September 1980,
* Congressional correspondence

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 AR20120005395, on 11 September 2012.

2.  The applicant provides a self-authored statement and arguments, letters from DFAS, and certificates not previously considered that warrant consideration at this time.

3.  The applicant and FSM were married on 24 April 1964.

4.  The FSM enlisted in the Regular Army on 31 October 1974 and he served through multiple extensions or reenlistments in a variety of stateside and overseas assignments.

5.  On 11 April 1995, in connection with his request for retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated he was married to the applicant.  A dependent son is also listed.  The FSM elected SBP coverage for "spouse and children" based on the full amount.  The applicant concurred with his election.

6.  Records show the FSM had two daughters with the applicant.  Records also show the FSM had a son who was born on 15 May 1989.

7.  The FSM retired on 31 October 1995 and he was placed on the Retired List in the rank/grade of MSG/E-8 on 1 November 1995.  He completed over 20 years of creditable active service.

8.  On 20 February 1999, the applicant and FSM were legally separated.  On 4 September 2001, the applicant and FSM entered into a verbal agreement that was recited in their final divorce decree.

9.  The final divorce decree, dated 13 May 2002, between the applicant and the FSM stipulated that the FSM would:

* pay the sum of $700.00 per month as and for spousal support directly to the applicant by military allotment, payable on the first day of each month
* provide the applicant with SBP coverage to his military retirement and sign and submit to the appropriate office any and all documents necessary to effectuate the above provisions

10.  There is no indication the FSM notified officials at DFAS of his divorce or changed his election from "spouse and children" to "former spouse" coverage within 1 year of his divorce.

11.  His pay records at DFAS Retired Pay show:

* there is neither a change of SBP election nor a deemed election
* it is possible he has remarried
* he has not paid spouse SBP premiums since his divorce in 2002

12.  The applicant provides a copy of the Board's previous decision, three certificates of appreciation and achievement, and a letter of appreciation, dated 4 September 1980.  She also provides congressional correspondence and two letters from DFAS.  The letters from DFAS were in response to her 15 April 2005 and 15 June 2006 requests concerning the Former Spouse Protection Act for Community Property.

13.  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.  Since its creation, it has been subjected to a number of substantial legislative changes.

14.  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.

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

16.  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.


17.  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.  Records show that at the time of the FSM's retirement in 1995, he elected to participate in the SBP for spouse and child coverage at the full amount.  However, he and his spouse divorced and their divorce decree obligated him to pay spousal support and name his former spouse as beneficiary of his SBP.

2.  The applicant has not provided evidence showing she notified DFAS of her divorce and made a deemed election within the 1-year time period nor has she provided supporting evidence from the FSM.  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) if they had been married for at least 1 year.

3.  Although the applicant believes she is entitled to the annuity due to her lengthy marriage, as previously stated length of marriage of one does not create a legal entitlement to SBP.  Former spouse coverage must be elected or deemed pursuant to a court order.  The Board may not act to terminate the rights of the current spouse in the SBP annuity by granting her the SBP.  Doing so would deprive the FSM's spouse of a property interest without due process of law.

4.  It is noted the applicant was given guidance in the previous record of proceedings on what the Board would accept for reconsideration, i.e., a signed, notarized affidavit from the FSM's spouse relinquishing her rights in the SBP in favor of the applicant or an order from a State Court of competent jurisdiction, in an action joining the FSM's spouse as a party, declaring that the applicant is the rightful beneficiary of the FSM's SBP.  However, the applicant fails to provide such information.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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 AR20120005395, dated 11 September 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)                                         AR20130001261



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ABCMR Record of Proceedings (cont)                                         AR20130001261



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