IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130007481 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of a previous request that the applicant, the former spouse of a deceased former service member (FSM), be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).

2.  Counsel states the Board made erroneous statements and conclusions in denying the SBP to the applicant.  She is providing affidavits to rebut the Board's decision.  The FSM clearly intended to leave his former spouse the SBP as part of a divorce settlement agreement.

3.  Counsel provides:

* DA Form 4240 (Data for Payment of Retired Army Personnel), dated 
7 October 1991
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 28 October 2011
* two letters from a Member of Congress, dated 22 May 2012 and 
24 October 2013
* affidavit from the applicant, dated 21 February 2013
* affidavit from a private investigator, dated 4 March 2013
* Sworn Notary Declaration, dated 25 September 2013
* FSM's Abstract of Information from Death Certificate, dated 10 July 2013 
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 AR20110022113, on 19 July 2012.

2.  Counsel provides documents that were not available to the Board during the previous consideration of the applicant's request.  These documents are new evidence that warrants consideration by the Board.  

3.  The FSM enlisted in the Regular Army on 24 July 1973.

4.  The applicant and the FSM were married on 29 June 1981.

5.  The FSM's record contains a DA Form 4240, dated 7 October 1991, which shows his SBP election.  He elected spouse coverage, full base amount prior to being permanently retired.

6.  On 31 October 1991, the FSM retired.

7.  On 20 October 2005, the FSM and the applicant divorced.  The Final Divorce Decree ordered the FSM to maintain the applicant as the beneficiary of his SBP.

8.  On 21 August 2011, the FSM died.

9.  The FSM'S service records contain a Department of State (DS) Form 
2060 (Report of Death of an American Citizen Abroad), dated 20 October 2011, showing at the time of his death he was married to D____ T_____ B___, not the applicant.  The form shows the FSM's cancelled passport was "returned to D_____ T_____ B___, wife."  

10.  Counsel provides an affidavit from the applicant, dated 21 February 2013.  She states that she and the FSM married in June 1981.  He was in the Army throughout their marriage.  They divorced in October 2005.  The divorce decree ordered the FSM to maintain the applicant as the beneficiary of his SBP.  No one told either the FSM or her to register the divorce decree with any military agency.  The FSM died in Panama on 21 August 2011.  She states that she and the FSM remained close and he never remarried.  The notice of death information from 
Panama is incorrect, "as verified to me by both D____ T_____ B___ and the 



private investigator I hired to locate her and search the public records in Panama this year---both personally verified to me there was never a marriage between D____ T_____ B___ and [the FSM]."  She should be entitled to his SBP because:

* he never changed his SBP election
* they both agreed to the final divorce decree
* he never remarried

11.  Counsel provides an affidavit from a Panamanian private investigator (PI), dated 4 March 2013.  The PI stated a thorough and extensive search of public records showed the FSM was never married to D____ T_____ B___, who was listed on the Death Certificate.  Being his neighbor, she knew him and approved his cremation for the coroner.  He was not able to locate D____ T_____ B___.

12.  Counsel provides a Sworn Notary Public Declaration from C______ B______ G_____, a resident of Panama and former associate of the FSM.  C______ B______ G_____ stated that he knew D____ T_____ B___ and the FSM.  They attended the same church.  The FSM and D____ T_____ B___ maintained a common law marriage.  During this union the FSM and D____ T_____ B___ did not marry, because the FSM's civil status did not permit it.
      
13.  Public Law 92-425, the SBP, enacted 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.  Elections are made by category, not by name (emphasis added).  An election, once made, is irrevocable except in certain circumstances.  

14.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

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 member was participating in the SBP 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 relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former 
spouse coverage an automatic benefit (emphasis added).  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.  Counsel contends the applicant should be entitled to SBP benefits based on the death of her former husband, the FSM.

2.  The FSM and the applicant divorced on 20 October 2005.  The applicant was awarded former spouse SBP coverage in the divorce decree.  She had until 19 October 2006 to make a request for a deemed election of the SBP.  There is no evidence of record that shows the applicant submitted a written request for a deemed election for former spouse coverage, and it appears the FSM did not take the necessary action to change his election to former spouse coverage.  Both the FSM and the applicant bore responsibility for complying with this legal requirement, and information on the SBP is readily available.  Failure to seek out that information and take the appropriate action is not a basis for granting relief.

3.  A DS Form 2060, dated 20 October 2011, shows at the time of the FSM's death he was married to D____ T_____ B___.  Counsel provided statements from the applicant, a former associate of the FSM, and a PI, who state the FSM never remarried.  It would be unfair to blindly accept these statements as true considering that a U.S. Government document indicates the FSM left behind a widow who would be the eligible SBP beneficiary.  The statements provided do not convincingly refute the information on the DS Form 2060.  While it appears that locating D____ T_____ B___ has been difficult, the ABCMR is not in a position to deprive her of her rights unless she relinquishes those rights or confirms that she is not the FSM's widow.  

4.  Although there is an insufficient evidentiary basis to grant the requested relief at this time, the applicant may still seek a judgment on this matter by a court of competent jurisdiction in the United States.




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 AR20110022113, dated 19 July 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)                                         AR20130007481





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ABCMR Record of Proceedings (cont)                                         AR20130007481



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