IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130008799 


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 deceased former service member (FSM), requests correction of the FSM's record to show he elected former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states:

* their divorce decree shows that it was ordered she continue to be the beneficiary of the FSM's SBP
* her portion of the FSM's retired pay stopped when he died

3.  The applicant provides:

* marriage certificate
* divorce decree
* property settlement agreement
* death certificate

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 enlisted in the Regular Army on 30 January 1979.

3.  On 28 September 1979, the applicant and FSM were married.

4.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 26 October 1998, shows the FSM elected spouse only SBP coverage and named the applicant as his spouse.

5.  On 31 January 1999, the FSM retired.

6.  On 3 November 1999, the applicant and FSM were divorced.  Their divorce decree shows:

* the applicant was married to the FSM for at least 10 years while he was on active duty
* the FSM was ordered to pay the applicant 45 percent of his disposable military retired pay effective 1 November 1999
*  the FSM was ordered to name the applicant as beneficiary for his SBP annuity

7.  There is no indication that either FSM or the applicant notified the Defense Finance and Accounting Service of their divorce within 1 year or that either submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce.

8.  On 17 April 2009, the FSM married "ICB."

9.  On 26 March 2012, the FSM died.  His death certificate shows his marital status as married.

10.  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.

11.  The Uniformed Services Former Spouses’ Protection Act (USFSPA), accomplishes two things.  First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding.  When a member dies, USFSPA payments going to a former spouse will stop.  It also established SBP coverage for former spouses of retiring members.

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

13.  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.

14.  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 contentions were noted.  However, when a Soldier dies, USFSPA payments going to a former spouse will stop.  

2.  SBP elections are made by category, not by name.  As long as she was the FSM’s spouse, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.

3.  There is no evidence and the applicant fails to provide evidence showing the FSM requested his SBP coverage be changed to former spouse coverage.  There is also no evidence the applicant submitted a request for a deemed election of former spouse coverage within the 1 year of her divorce.

4.  The FSM remarried on 17 April 2009 and his widow obtained a vested interest in the SBP on their first anniversary.  When he died on 26 March 2012, his widow became the eligible beneficiary by law.

5.  The ABCMR may not act to terminate the widow's rights in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s widow of a property interest without due process of law.  The applicant would have to provide a signed and notarized affidavit from the FSM's widow relinquishing her rights in the SBP or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's widow as a party, declaring the she is the rightful beneficiary of the FSM's SBP annuity

6.  The evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant may apply to the ABCMR for reconsideration if she obtains, as described above, an affidavit from the FSM’s widow or an order from a State Court of competent jurisdiction that directs payment of the FSM’s SBP annuity to the applicant effective the day after his death.

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)                                         AR20130008799



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ABCMR Record of Proceedings (cont)                                         AR20130008799



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