BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130017318 


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 requests, in effect, correction of the records of her former spouse, a deceased former service member (FSM) who retired from the Regular Army, to show the FSM changed his Survivor Benefit Plan (SBP) election from spouse coverage to former spouse coverage and to pay her an annuity.

2.  The applicant states her 1986 divorce decree directs the FSM to keep her as the beneficiary of his SBP.  In 2003, the FSM set up a direct allotment for her to receive a portion of his retired pay and also to designate her as beneficiary for his SBP.  She contends that she was not informed by the FSM, his attorney, or the U.S. Government of the requirement that a change of SBP beneficiary had to be made within a year of the divorce.  Further, she was not aware that the FSM had ignored these requirements.

3.  The applicant provides copies of:

* Marriage Certificate
* Final Divorce Decree, dated 20 March 1986
* Letter from the FSM to the applicant, dated 6 December 2003 with enclosures
* DD Form 2293 (Application for Former Spouse Payments from Retired Pay), dated 10 November 2009
* FSM's Death Certificate, issued 30 November 2011
* Letter from Defense Finance and Accounting Service (DFAS) dated        14 December 2011
* Standard Form 1199A (Direct Deposit Sign-Up Form) dated 16 March 2012
* DD Form 2656-7 (Verification for Survivor Annuity) dated 16 May 2012
* Form W-4P (Withholding Certificate for Pension or Annuity Payments
* Letter from DFAS, dated 4 June 2012

CONSIDERATION OF EVIDENCE:

1.  The FSM performed enlisted service in the U.S. Army from 31 December 1942 to 30 January 1946, attaining the rank of staff sergeant.

2.  On 25 June 1949, the FSM married the applicant.

3.  On 6 June 1951, the FSM was commissioned as a U.S. Army Reserve officer.  He then entered medical training.

4.  On 8 January 1959, the FSM entered the Regular Army.  He progressed through the ranks and retired as a colonel, pay grade O-6 on 31 December 1977.

5.  A DA Form 4240 (Data for Payment of Retired Army Personnel) dated 
29 December 1977 indicates that the FSM elected spouse and dependent children SBP coverage at the full amount.  This form shows that the applicant was the FSM's spouse at the time.

6.  A final divorce decree, dated 20 March 1986 indicates that the court found the applicant was the beneficiary for the FSM's SBP.  The court ordered the 
FSM to designate the applicant as his former spouse and as the beneficiary for his SBP, and that she remain the beneficiary as his former spouse under that plan.  It also specifically directed the FSM to not alter in anyway the election naming the applicant as the beneficiary for his SBP.

7.  In a letter to the applicant, dated 6 December 2003, the FSM informed the applicant that he had enclosed documents he intended to send to DFAS by registered mail.  Those enclosures consisted of:

* A letter to DFAS to inform them that the applicant was to be designated as beneficiary for his SBP and that his then current wife may be designated as beneficiary for all other assets
* A voided copy of a blank check pertaining to the applicant's bank account
* DFAS-CL 7220/148 (Retiree Account Statement) showing he had spouse only coverage


8.  On 17 November 2011, the FSM died.  On 14 December 2011, DFAS wrote a letter to the applicant informing her that due to the FSM's death her payments from his retired pay were terminated.

9.  On 16 May 2012, the applicant completed a DD Form 2656-7 requesting an SBP annuity as the FSM's former spouse.

10.  In a letter dated 4 June 2012, DFAS advised the applicant that their records did not show that the FSM had ever requested to change his SBP election from spouse to former spouse.  Therefore, DFAS denied her request for an SBP annuity.

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. 

12.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

13.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order that would require SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

14.  Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.

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.  The applicant contends, in effect, that the records of the FSM should be corrected to show he changed his SBP election from spouse coverage to former spouse coverage and to pay her an SBP annuity.

2.  The available evidence shows that when the FSM requested retired pay in 1977, he had also requested SBP coverage for the applicant who was his spouse at the time.

3.  The applicant and the FSM were divorced on 20 March 1986.  The applicant did not request an SBP election of former spouse coverage be deemed to have been made within one year of the divorce.  The FSM never made a former spouse election within one year.

4.  The FSM did not act on this issue until about 2003, well after the 1-year time limit for him to request the court-ordered change to former spouse coverage and after he had remarried.  His new spouse now has a vested interest as a designated beneficiary.  Therefore, unless the current spouse offers to forfeit her interest in the SBP, or if a court of competent jurisdiction to which the spouse is a party decrees the applicant is the rightful SBP beneficiary based upon the settlement agreement and the divorce decree, this Board cannot provide the applicant's requested relief.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20130017318





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ABCMR Record of Proceedings (cont)                                         AR20130017318



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