IN THE CASE OF:

		BOARD DATE:	    25 March 2014

		DOCKET NUMBER:  AR20130011257 


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:

* on 9 May 2013, she received a letter denying her an SBP annuity
* she and the FSM were sweethearts from age 15 and got married on 22 September 1973, they had over 20 years of military life together, and they had 2 children and 5 grandchildren
* in 2002, she gave up her job and moved in with the FSM's mother and became her primary care giver because she needed full-time care
* on 7 May 2007 [2009], she and the FSM divorced and had an agreement that since she took care of his mother and her medical care, he would pay her alimony and if anything happened to him she would receive retirement survivor benefits
* their divorce decree stated the FSM would maintain her as beneficiary and he assured everyone that he would maintain her as beneficiary and be the one responsible to handle paperwork with the military
* the FSM repeatedly told her he had taken care of the necessary paperwork
* she believes she is the one who should be entitled to the FSM's SBP
* the FSM had all of their legal documents since she moved out of their home
* the FSM was supposed to submit the proper documents because she was in and out of the hospital with the FSM's mother
* she was shocked and hurt when she received the letter of denial for the SBP annuity because she had been told for over 30 years she would be the beneficiary

3.  The applicant provides:

* self-authored statements
* marriage certificate
* death certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* divorce decree
* letter, from the Defense Finance and Accounting Service (DFAS), dated 2 April 2009

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.  On 22 September 1972, the FSM enlisted in the Regular Army and was honorably discharged on 12 November 1984.

3.  On 22 September 1973, the applicant (L.S.K.) and FSM were married.

4.  On 19 December 1984, the FSM enlisted in the Army National Guard (ARNG).

5.  On 31 January 1993, the FSM was transferred to the Retired Reserve.

6.  DFAS records show that on 1 February 1993, the FSM elected spouse and child Reserve Component SBP (RCSBP) coverage.

7.  On 7 May 2009, the FSM and the applicant were divorced.  The divorce decree shows the FSM agreed to maintain and name the applicant as beneficiary of his SBP annuity.  The divorce decree also shows, in pertinent part, the applicant was advised:

* she had 1 year from the date of the entry of the final judgment and decree to request that DFAS "deem" a former spouse SBP election for her
* "deeming" the SBP election with the prescribed time frame would ensure that the SBP was established for her in the event the FSM failed to make the required election
* if the request was not made by either party within the time allowed that former spouse coverage would not be established

8.  There is no indication that either the FSM or the applicant notified DFAS 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.

9.  On 1 February 2013, the FSM died.  His death certificate shows his marital status as married and J.K. listed as his wife.

10.  On 20 February 2013, the applicant submitted a Department of Defense Form 2656-7 (Verification for Survivor Annuity) to DFAS indicating she was the entitled former spouse.

11.  DFAS records show J.K. as the eligible annuitant.

12.  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.

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.  

14.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for Reserve Component and retired members.

15.  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.  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 that the applicant submitted a request for a deemed election of former spouse coverage within the 1 year of her divorce, as her divorce decree advised her to do.

2.  The FSM remarried and his widow obtained a vested interest in the SBP on their first anniversary.  When he died on 1 February 2013, his widow became the eligible beneficiary by law.

3.  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 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

4.  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 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)                                         AR20130011257



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ABCMR Record of Proceedings (cont)                                         AR20130011257



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