IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130001490 


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, that the records of her former spouse, a former service member (FSM), be corrected to show a former spouse Survivor Benefit Plan (SBP) election was submitted and approved within one year of their divorce.

2.  The applicant states she was not informed of any paperwork that was needed in order to establish her eligibility for the SBP.  She contends she was under the impression that the divorce papers were sufficient.  She adds that she was married to the FSM throughout his entire military career and that she received the benefit through the divorce.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Marriage
* copies of her Driver's License
* Department of Defense Identification and Privilege Card
* Judgment of Absolute Divorce 

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.  The FSM and the applicant married on 12 August 1978.  The FSM enlisted in the Regular Army on 31 January 1980.  

3.  On 4 January 2001, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) in which he elected to enroll in the SBP for spouse only coverage.  The FSM retired on 31 March 2001.

4.  The FSM and the applicant divorced on 3 January 2002.  The Judgment of Absolute Divorce shows the court ordered the SBP coverage be maintained on the former spouse (the applicant).  

5.  There is no evidence at the Defense Finance and Accounting Service indicating the FSM ever complied with the Judgment of Absolute Divorce to change his SBP election from spouse coverage to former spouse coverage within one year of the date of the divorce.  There is also no evidence the applicant made a deemed election within one year of the court order.

6.  The current marital status of the FSM is unknown.  

7.  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.  

8.  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.  

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

10.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.
11.  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 one 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.

12.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the records of the FSM should be corrected to show he elected former spouse SBP coverage has been carefully considered.  

2.  The Judgment of Absolute Divorce required the FSM to maintained SBP coverage on the applicant.  However, there is no evidence showing the FSM complied with the court order by changing his election from spouse to former spouse coverage.  There is also no evidence the applicant made a deemed election within one year of the court order as required by law.

3.  Because SBP elections are made by category, not by name, as long as the applicant was the FSM's spouse, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.  

4.  The FSM’s current marital status is unknown.  Based on this fact, the ABCMR may not act to terminate the FSM's current spouse’s (if remarried) rights in the SBP annuity by granting the applicant the SBP, as doing so would deprive the FSM's current spouse of a property interest without due process of law.  She would have to provide a signed and notarized affidavit from the FSM's current spouse 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 current spouse as a party, declaring that she is the rightful beneficiary of the FSM's SBP coverage.  


5.  Under the present conditions, there is no effective relief for the applicant unless the applicant can provide evidence showing the FSM did not remarry, the FSM's current spouse is willing to relinquish her entitlement, or a State Court of competent jurisdiction declares the applicant is the rightful beneficiary of the FSM's SBP coverage.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20130001490



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001490



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1