BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017575 


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 entitlement to the FSM's Survivor Benefit Plan (SBP) annuity.

2.  The applicant states:

	a.  Her former spouse signed up for the SBP at the time of his retirement.  It was part of the court order that he maintain the SBP in her name in addition to the money she received from his retired pay as a community property settlement.  Her lawyer sent the qualified domestic relations order (DRO) to the Defense Finance and Accounting Service (DFAS) on 19 November 2009 by certified mail.

	b.  Her former spouse wrongfully stopped payments for the SBP coverage on 31 December 2009 in direct opposition to a standing court order.  She was never notified of this by her former spouse or DFAS who was in possession of the court order.  The court found it to be just and fair that she receive the SBP as it was in effect at the time of their separation.  She and her children have a great need for this money.

3.  The applicant provides a certificate of death; a Final Decree of Divorce, dated 19 November 2009; a DRO; DD Form 2293 (Application for Former Spouse Payments from Retired Pay); DFAS Form 1059 (Direct Deposit Authorization), dated 23 November 2009; a letter to DFAS from her attorney, dated 9 August 2013; and the FSM's retirement DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2005.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 27 October 1983.  He and the applicant, Karen, were married on 2 April 1987.  He served through several reenlistments and/or extensions and attained the rank/grade of sergeant first class (SFC)/E-7.

2.  In preparation for his upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) on 19 November 2004 wherein he stated he was married to the applicant and they had four dependent children.  He elected SBP spouse only coverage.

3.  He was retired on 31 January 2005 by reason of sufficient service for retirement in the rank of SFC and he was placed on the Retired List on 1 February 2005.

4.  He and the applicant were divorced on 19 November 2009.  The applicant provides the Final Decree of Divorce, dated 19 November 2009, wherein it is silent on the SBP.

5.  The applicant also provides a DRO, dated 19 November 2009, wherein it stated, in part, a portion of the FSM's retired pay was awarded to the applicant and she was directed to apply to DFAS for her portion of his retired pay by completing a DD Form 2293 and providing it to DFAS with the DRO and marriage certificate.  The applicant was presently named as the spouse beneficiary for the FSM's SBP and his election to provide SBP to the applicant should be continued by her being designated as a former spouse beneficiary. 

6.  The FSM died on 14 January 2013.  The certificate of death shows at the time of his death he was married to his spouse, Christine.

7.  In an email, dated 20 May 2014, a DFAS official verified that the FSM submitted his divorce decree in December 2009 to stop his SBP coverage as he was no longer married.  There was no documentation to show the applicant ever deemed the SBP election for former spouse coverage.  The FSM remarried in October 2010 and his spouse, Christine, was the beneficiary of his SBP and was receiving the annuity.

8.  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.  

9.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members.

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

11.  Title 10, U.S. Code, section 1448(b)(3) permitted 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 evidence of record shows that the FSM elected SBP spouse only coverage at the time of his retirement.  It also shows that although the DRO stated the FSM agreed to provide SBP coverage for his former spouse, he did not request his SBP be changed to former spouse coverage.  It appears he submitted his divorce decree to DFAS which was silent on the SBP and requested his coverage stop as he no longer had a spouse.

2.  It also appears that although the applicant may have requested entitlement to a portion of the FSM's retired pay she did not deem former spouse coverage within 1 year of the date of her divorce.

3.  SBP coverage is made by category and not by name.  As the FSM had elected spouse coverage at the time he retired and he was married at the time of his death, his widow received the SBP annuity.  The FSM and his subsequent spouse were married for over 1 year; therefore, she had a superior vested interest in the SBP and was the rightful beneficiary.  

4.  The ABCMR may not deprive the surviving spouse of this benefit as doing so would constitute a taking without due process under the law.  The ABCMR may only take such action if a court of competent jurisdiction in a suit joining the surviving spouse declares the applicant possesses a superior interest in the SBP annuity or if the FSM’s widow provides a notarized statement agreeing to give up her rights to the SBP in favor of the applicant.

5.  In view of the foregoing there is no 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)                                         AR20130017575



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ABCMR Record of Proceedings (cont)                                         AR20130017575



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