IN THE CASE OF:	  

		BOARD DATE:	    15 October 2013

		DOCKET NUMBER:  AR20130003451 


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, the former spouse of a retired and deceased former service member (FSM), requests payment of the Survivor Benefit Plan (SBP) annuity based on his death.  In effect, she requests correction of her former husband's record to show he elected SBP coverage for former spouse.

2.  The applicant states her former husband said he paid into a plan that would allow her alimony to continue after his death.  

3.  The applicant provides her divorce decree and the FSM's death certificate. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the FSM reenlisted in the Regular Army on 28 October 1975.  He and Delores, the applicant, were married on 26 June 1971. 

2.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  On 22 May 1992, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Delores and they had four children.  He elected "spouse only" SBP coverage based on the full amount. He and a Retirement Services Officer authenticated this form with their signatures. 

4.  The FSM retired on 27 May 1992 by reason of disability and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 28 May 1992. 

5.  On 16 March 1995, the applicant petitioned the civil court for a divorce from the FSM.  Her petition mentioned several items, including receipt of "retirement benefits as a former spouse" and "alimony in a reasonable amount." 

6.  On 5 June 1995, he the applicant, entered into a Marital Settlement Agreement (MSA).  The MSA is silent with respect to the SBP.  

7.  On 22 August 1995, the court issued a final decree of divorce that incorporates their MSA. 

8.  On 4 October 1995, the court issued an amended final decree of divorce that incorporated the MSA.  The divorce decree states:

* The court finds "Fifty percent of FSM's disposable retired pay, based on 20/20/20 rule, direct payment of state-court-ordered division of military pay based on Uniformed Services Former Spouse Protection Act (USFSPA)"
* The court orders and decrees dissolution of the marriage and neither party shall pay alimony to the other

9.  There is no indication the FSM requested to change his SBP election from "spouse" to "former spouse" coverage.  Additionally, there is no indication the applicant requested a deemed SBP election within 1 year of her divorce.

10.  On 25 May 2002, the FSM married Alice.  

11.  On 28 October 2012, the FSM died.  His death certificate listed his marital status as married and his surviving spouse as Alice. 

12.  Subsequent to his death, officials at the Defense Finance and Accounting Service (DFAS) established an annuity for the FSM's spouse (now widow), Alice. 

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

14.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  

15.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

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.  The evidence of record shows that in connection with his retirement in May 1992, the FSM elected SBP coverage for spouse.  The applicant and the FSM were divorced in 1995.  He did not make a former spouse election within 1 year of the divorce and she did not request a deemed SBP election within 1 year of her divorce.

2.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

3.  The law allows a former spouse to request a deemed SBP election.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within one year from the date 

of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.

4.  In this case, it does not appear that the court awarded the applicant the SBP.  It mentioned only “disposable retired pay.”

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

6.  Since the FSM was married to Alice at the time death and they had been married for at least one year, DFAS established an annuity for Alice.  The Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse (widow) of a property interest without due process of law.  

7.  Issues pertaining to alimony are civil issues and are not within the purview of this Board. 

8.  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 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)                                         AR20130003451





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ABCMR Record of Proceedings (cont)                                         AR20130003451



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