BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20130009440 


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 reconsideration of her request for correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant defers to counsel.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for correction of the FSM's record to show he changed his SBP election from spouse to former spouse coverage.

2.  Counsel states the request for reconsideration is based on grounds that the applicant has obtained new evidence, in the form of a West Virginia State Court ruling, that finds her to be the rightful recipient of the FSM's SBP benefits.

	a.  The applicant (E--- J. N----, now E--- J. S----), through informal communications with S--- A-- N---- (the FSM's widow), sought to obtain a notarized, sworn affidavit from the FSM's widow relinquishing her right to the SBP payment.


	b.  After no response was received, an action was filed in Lewis County West Virginia (WV) Family Court for adjudication as to the proper SBP beneficiary.

	c.  The WV Family Court is the Court that granted the original divorce decree between the applicant and FSM, and is the court of competent jurisdiction over enforcement of its rulings.

	d.  The action named as parties served, S--- A-- N---- (the FSM's widow) and D--- M-- N---- (the FSM's son and executor).

3.  The applicant provides copies of Family Court of Lewis County, WV State Court:

* Petition for Enforcement and/or Declaratory Judgment
* Order Adjudicating Right to Receive SBP
* Notice of Contempt Hearing/Rule to Show Cause

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 AR20110018472 on 27 March 2012.

2.  The FSM was born in November 1942.  He had prior honorable enlisted service from 15 December 1959 through 30 June 1966.

3.  The applicant and FSM married on 1 September 1962.

4.  The FSM was appointed as a Reserve commissioned officer on 1 July 1966.

	a.  On 7 August 1979, he elected spouse only coverage based on the full amount of retired pay with Reserve Component (RC) SBP Option C (Immediate Coverage).

	b.  He was assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 30 July 1994.

5.  A Circuit Court of Lewis County, WV, Decree of Divorce, shows the applicant and FSM were divorced on 29 May 1997.  It also shows the Property Settlement Agreement, dated 17 April 1997, was ratified, approved, adopted by the court, and incorporated into the divorce order.


	a.  The Property Settlement Agreement, dated 17 April 1997, shows the FSM agreed that the applicant shall be entitled to one-half of the value of his retirement pension through the WV Army National Guard (WVARNG) by operation of a Qualified Domestic Relations Order (QDRO) to be entered into.  The FSM also agreed that the applicant shall remain as the survivor of his WVARNG SBP and that he would make no changes in the plan that would result in the applicant being removed as the survivor through the plan.

	b.  The Circuit Court of Lewis County, WV, QDRO shows the applicant was entitled to one-half (50 percent) of the FSM's retired pay.  It also shows the applicant was to be named as a beneficiary of the FSM's SBP and the FSM was to notify the Defense Finance and Accounting Service (DFAS) and designate the applicant as the SBP beneficiary.  The QDRO was entered into judgment on
4 June 1998.

6.  On 11 June 1998, the applicant's attorney forwarded an "Application for Former Spouse Payments from Retired Pay," a certified copy of the QDRO, and the marriage certificate of the parties to DFAS.

7.  The FSM married S--- A-- (M----) in June 2000.

8.  The FSM died on 16 August 2010.

9.  On 7 December 2010, the Deputy Director Operations, DFAS, notified the applicant (through her Congresswoman) that the FSM did not provide a qualified court order to change his SBP coverage to former spouse coverage within the 
1-year time period.  The QDRO, dated 4 June 1998, was received; however, an SBP "deemed election" was not received from the applicant within 1 year.  Since former spouse coverage was not elected by either party within 1 year from the QDRO, the applicant was not entitled to the monthly SBP annuity.

10.  On 27 March 2012, in ABCMR Docket Number AR20110018472, the Board denied the applicant's request for correction of the FSM's records to show he changed his SBP election from spouse to former spouse.

	a.  The Board concluded that since the FSM died with spouse SBP coverage in effect, his legal spouse at the time of death was the lawful beneficiary of his SBP.  Accordingly, the Board did not take any action to prevent the lawful beneficiary from receiving those benefits because to do so would constitute an unconstitutional taking without due process of law.


	b.  The applicant was advised, "The Board may not divest the FSM's widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM's widow as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, the applicant can apply to the 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 widow relinquishing her right to the SBP payment."

11.  In support of the request for reconsideration, counsel provides the following documents, promulgated by the Family Court of Lewis County, WV, pertaining to Civil Action Number 96-D-167:

	a.  Petition for Enforcement and/or Declaratory Judgment, that shows, on 
28 January 2013, the applicant sought enforcement of the prior orders of the Court by way of a finding and/or determination and/or declaratory judgment holding that the applicant, and not S--- A-- N---- (the FSM's widow), is the rightful recipient of the FSM's military survivor benefits (SBP), which was previously awarded to the FSM's widow.

	b.  Notice of Contempt Hearing/Rule to Show Cause, that shows, on
22 February 2013, the Court reviewed a Petition for Contempt filed by the applicant and determined the petition states a prima facie case of contempt.  The action directed S--- N---- (the FSM's widow) and D--- N---- (the FSM's son and executor) to show cause at a case management conference on 5 March 2013.

	c.  Order Adjudicating Right to Receive SBP, that shows, on 21 March 2013, applicant's counsel, the FSM's widow, and the FSM's executor were present, and the applicant appeared telephonically.  The Court ordered that the applicant is the proper and rightful "survivor" and appropriate recipient of the FSM's SBP benefits and not S--- N----.  The Court ruling was issued as a Final Order and all parties were given 30 days to appeal.

	d.  In a letter, dated 21 May 2013, applicant's counsel affirmed that the State Court action is now finalized.

12.  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.


13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  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:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend that the original request to correct the FSM's records to show his participation in the SBP with former spouse coverage should be reconsidered based on new evidence that is relative to the case.

2.  On 21 March 2013, in the Family Court of Lewis County, WV, Civil Action Number 96-D-167, the Court ordered that the applicant (E--- J. S----) is the proper and rightful survivor and appropriate recipient of the FSM's SBP benefits (not S---- A-- N----).

3.  Therefore, in view of the foregoing, it would be appropriate at this time to correct the FSM's records to show his SBP beneficiary category was changed from spouse to former spouse coverage, full base amount, effective 30 May 1997, resulting in the applicant's entitlement to receive SBP payments based on former spouse coverage beginning the day after the FSM's death.


BOARD VOTE:

_x____  __x______  ___x_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110018472, dated 27 March 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM's SBP beneficiary category was changed from spouse to former spouse coverage effective 30 May 1997.

2.  As a result of the above correction, DFAS should pay the applicant an annuity based upon the FSM's participation in the SBP with former spouse coverage, full amount, retroactive to 17 August 2010, the day after his death.

3.  In addition, as a result of the above correction, DFAS should notify the former service member's widow of the termination of the monthly SBP annuity benefit and take appropriate action to recoup any monies that may be due the U.S. Government as a result of this correction of records.



      __________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)                                         AR20130009440



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009440



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1