BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130012079 


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 his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

	a.  the FSM assured her that the mistakes made by their divorce attorneys in 1992 had been corrected by him through the Army Board for Corrections to state "Former Spouse" on the SBP election in 2007.

	b.  she and the FSM believed their attorneys submitted the deemed election request to the Defense Finance and Accounting Service (DFAS) after their divorce in 1992.  In reviewing the FSM's Leave and Earnings Statement in 2002, her date of birth was still listed as the recipient for the SBP.  She called DFAS on 6 September 2002, and spoke with someone who assured her that she was listed as the recipient for the SBP election.

	c.  in 2007, the FSM asked her to fax him a copy of the divorce decree and her current marriage certificate.  He stated he was working with his attorney to submit a DD Form 149 (Application for Correction of Military Records) to correct the erroneous information and to include "Former Spouse" as recipient for the SBP.

	d.  she has forwarded a copy of their divorce decree and her current marriage certificate in earlier correspondence to this office.
	e.  during their divorce, they mutually agreed she would not have the court divide his retirement pay, but she would receive the SBP.  She understood that if she had remarried prior to the age of 55 she would not be eligible to receive the SBP unless her current marriage ended in divorce or death of her current husband.     

3.  The applicant provides a copy of the FSM's death certificate.

 CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Army National Guard, the FSM enlisted in the Regular Army on 15 April 1963.  On an unknown date, he married the applicant.

2.  His record contains a DD Form 4240 (Data for Payment of Retired Army Personnel), dated 4 August 1988, that shows he elected spouse and children coverage, reduced amount.  

3.  He retired on 31 August 1988 in the rank of master sergeant.

4.  According to the applicant, she and the FSM divorced on 1992. 

5.  There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.  Contrary to the applicant's understanding, there is no record of the FSM ever having attempted to change the election through recourse to this Board.

6.  The Defense Enrollment Eligibility Reporting System records show the FSM married Cherry on 18 April 1998.

7.  The FSM died on 26 February 2013.  His death certificate shows he was married to Cherry.

8.  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.  Elections are made by category, not by name. 

9.  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.

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

11.  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.

12.  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 applicant's contentions were noted.  However, SBP elections are made by category, not by name.  As long as she was the FSM's wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.

2.  There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory 1-year time limit.

3.  There is evidence to show the FSM remarried on 18 April 1998.  At the 1-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

4.  The ABCMR may not act to terminate the rights of the FSM's spouse in the SBP annuity by granting the applicant the SBP, as so doing would deprive the FSM's spouse of a property interest without due process of law.  The applicant would have to provide a signed and notarized affidavit from the FSM's spouse wherein she knowingly and voluntarily relinquishes her rights in the SBP in favor of the applicant or obtain an order from a State court of competent jurisdiction in an action joining the FSM's spouse as a party and declaring the applicant as the rightful beneficiary of the FSM's SBP annuity and divesting his current spouse of her interest effective no later than the day before his death.

5.  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 spouse or an order from a State court of competent jurisdiction that divests the FSM's current spouse of her SBP interest.

6.  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)                                         AR20130012079





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ABCMR Record of Proceedings (cont)                                         AR20130012079



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