IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002952 


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 the record of her deceased former husband, a former service member (FSM), be corrected to show her as the eligible former spouse beneficiary for his Survivor Benefit Plan (SBP) annuity.  

2.  The applicant states the FSM, by way of his divorce decree, showed a clear intent to maintain the SBP for her.  However, he was not advised of the requirement to inform the Defense Finance and Accounting Service (DFAS) and therefore failed to do so.  This failure has a significant adverse financial impact on her and her three sons.

3.  The applicant provides:

* letter from counsel
* Marriage Certificate
* FSM's Death Certificate
* Retiree Account Statement
* letter from the applicant to DFAS
* letter from DFAS to the applicant 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the FSM’s record be corrected to show the applicant as the former spouse beneficiary for the FSM's SBP benefits.  

2.  Counsel states at the time of their divorce the FSM and the applicant were unaware of the requirement set forth in the U.S. Code requiring a former spouse deemed election with respect to the FSM's SBP.  The applicant enlisted the services of a paralegal to assist in drafting the couple's separation agreement which was incorporated into the divorce decree issued on 6 April 2010.  The separation agreement clearly evidences that the FSM had agreed to and wished for the applicant to be the beneficiary of the SBP in the event he predeceased her.  While the separation agreement is poorly worded, a fault attributable to the drafting paralegal, it does note that the applicant has a substantial interest in the FSM's retired pay.  After addressing the FSM's military retired pay, the separation agreement states "[h]usband will continue to pay SBP."  While not the ideal language, that sentence clearly indicates that the FSM had an obligation to continue the SBP in favor of the applicant.  Unfortunately for the applicant, the paralegal preparing the separation agreement was unaware of the required deemed election.

3.  In the year after finalizing their divorce, the FSM and the applicant failed to make the required deemed election.  This failure was a byproduct of their ignorance with respect to the requirement.  Consequently, the applicant is facing a significant financial hardship as she is not receiving the SBP payments contemplated by the separation agreement.  

4.  Counsel provides no additional documents in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  On 25 March 1981, the applicant and FSM were married in Colorado Springs, CO.  On 31 January 1992, the FSM was honorably retired.

2.  The FSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel).  This form shows in:

* Part V (SBP Election), item 14, the FSM was married and had dependent children
* Part V, item 15b, the FSM elected spouse and dependent children coverage
* Part V, item 16, the FSM elected to have an annuity based on the full amount of his retired pay
* Part V, item 17a, (Name of Spouse/Former Spouse), the name of the applicant
* Part V, item 17e (Dependent Children), a son born in May 1984 and a son born in May 1991
* Part VI (Certification), the FSM certified with full knowledge the information appearing on the form by signing the form on 29 October 1991
* Part VI bears a witness signature
* Part VII (Survivor Benefit Plan Certificates), item 24 (required when a married Soldier elects reduced coverage or declined coverage for spouse), that the applicant did not sign the form which indicates the FSM's SBP election was for full coverage   

3.  A Statement of Spousal Concurrence shows, on 7 November 1991, the applicant concurred with the FSM's election of spouse and children coverage based on the full amount of his retired pay.

4.  A Retiree Account Statement, dated 4 September 2008, shows at that time the FSM was paying SBP premiums for spouse and children SBP coverage.  The statement lists the applicant as his spouse.

5.  On 6 April 2010, the District Court of El Paso County, CO, ordered dissolution of the marriage between the applicant and the FSM.  A separation agreement completed in November 2009 was incorporated into the divorce decree.  It shows that the applicant was awarded a portion of the FSM's disposable military retired pay.  It stated that the FSM would continue to pay SBP.

6.  The available records do not show the FSM made a voluntary election to change his SBP election from spouse and children to former spouse and children coverage within 1 year after their divorce or that the applicant requested a deemed election of former spouse coverage within that same period of time.

7.  The record is silent on further SBP transactions between the FSM and DFAS.  

8.  The applicant provided a Certificate of Death showing the FSM died on 6 February 2012.  The form shows the FSM was married at the time.  The spouse listed is not the applicant.

9.  The applicant provides her letter to DFAS, dated 11 July 2012, in which she requested SBP annuity payments based on the separation agreement.

10.  On 14 August 2012, DFAS stated, in response to the above letter, that in order for a former spouse to be eligible for the SBP the former spouse had to be awarded the SBP in the divorce decree and the applicant or her attorney would have to deem her election for former spouse SBP coverage with 1 year of the date of divorce.  Her settlement agreement did not specifically awarding her SBP coverage.  It states the retiree must continue to pay SBP premiums.  Records on file at DFAS reflected the retiree's SBP election was for spouse coverage and they did not receive a deemed election from her within 1 year of her divorce.  Due to the records on file, DFAS denied her application for the SBP.
 
11.  In the processing of this case, a member of the Board staff contacted DFAS.  DFAS indicated the FSM was married to his widow for less than 1 year at the time of his death.  DFAS further indicated that a son, a student, had been receiving the SBP annuity.

12.  Public Law 92-425, the SBP, enacted on 21 September 1972, 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.  It required that retiring members and spouses be informed of SBP options and effects.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

14.  Title 10, U. S. Code, Section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.  Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered.  The divorce decree, which includes the separation agreement, appears to have stipulated the applicant would remain the beneficiary for the FSM’s SBP benefit.  However, there is no evidence the FSM attempted to comply with the divorce decree by submitting a voluntary request to DFAS to have his SBP election changed from spouse and children to former spouse and children or that the applicant requested a deemed election within 1 year of their divorce.  Though the applicant's argument appears to be supported by the evidence she provides, even if awarded former spouse coverage in the divorce that fact is not the only issue in this case.

2.  Although the FSM's widow is not a qualified beneficiary due to the short length of her marriage, one of the FSM's sons has been receiving the SBP annuity payments.  As such, the Board may not divest the FSM's son of his interest in the SBP without an order from a State court of competent jurisdiction or other document showing he voluntarily relinquishes his right to receive the SBP annuity.  That is, the Board cannot take the SBP from the FSM's son without violating his constitutional right to due process of law.  Therefore, this court action would have to include the FSM's son as a party in order to protect his property interest and rights.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to this Board for reconsideration.  In the alternative, the Board may reconsider the applicant's request if she obtains a notarized, sworn affidavit from the FSM's son irrevocably renouncing his right to the SBP annuity both past and future.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.

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)                                         AR20130002952



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ABCMR Record of Proceedings (cont)                                         AR20130002952



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