IN THE CASE OF

		BOARD DATE:	    24 July 2014

		DOCKET NUMBER:  AR20130017745 


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 correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse. 

2.  The applicant states she is eligible for the SBP annuity as a former spouse because she was unaware of the 1-year deadline.  If anything else was required to qualify, she was never notified.

3.  The applicant provides:

* Judgment of Divorce, dated 27 August 1999
* Separation Agreement, dated 14 April 1999
* correspondence from her lawyer to her
* correspondence from her lawyer to the Defense Finance and Accounting Service (DFAS)
* correspondence from DFAS to her lawyer
* DFAS printouts regarding the Uniformed Services Former Spouses' Protection Act Bulletin
* DD Form 2293 (Application for Former Spouse Payments from Retired Pay)
* Tax Forms W-2P and 1099-R
* DD Form 2656-7 (Verification for Survivor Annuity)
* certificate of marriage


CONSIDERATION OF EVIDENCE:

1.  With previous active service, the FSM's records show he enlisted in the Regular Army on 7 August 1978.  He and Mary, the applicant, were married on 9 October 1978. 

2.  The FSM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

3.  On 20 September 1989, in connection with his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Mary and they had a stepdaughter born in 1976 and a daughter born in 1982.  He elected SBP coverage for "spouse and dependent children" based on the full amount. 

4.  The FSM retired on 27 September 1989 (by reason of disability), and he was placed on the Retired List in the retired rank of SFC/E-7 on 28 September 1989. 

5.  On 14 April 1999, the FSM and applicant entered into a separation agreement.  Paragraph 11 of their agreement states "the Husband hereby waives and releases any and all claims or rights with respect to any pension or retirement plans of the Wife.  The Wife is not waiving claim or interest in Husband's pension or retirement plans, except as he is presently receiving.  Specifically, the Wife is not waiving interest in surviving benefits." 

6.  The FSM and applicant were divorced on 27 August 1999.  Their divorce decree incorporates their separation agreement. 

7.  There is no indication the FSM notified officials at DFAS of his divorce or that he submitted a voluntary change of his SBP coverage within 1 year of his divorce.  Likewise, there is no indication the former spouse made a deemed election to change the FSM's SBP coverage to "former spouse" within 1 year of the date of their divorce.

8.  On 17 September 2001, the applicant's attorney corresponded with DFAS and asked for any forms necessary concerning benefits.  The attorney stated that the applicant is entitled to her share of any pension or retirement plans of the FSM, specifically survivor benefits and any filing needed to be done in order to protect her interest in survivor benefits. 

9.  On 23 October 2001, a DFAS official responded to the applicant's attorney and advised him of the necessary documents needed under the Uniformed Services Former Spouses' Protection Act (USFSPA). 

10.  The FSM died on or about 8 July 2013.  His death certificate shows he was married at the time of death.  The name of the surviving spouse is listed as Denise M. Dxxxx.  

11.  According to DFAS, an audit of the FSM's pay record revealed that DFAS does not have any documentation of a deemed election from either the retiree or the former spouse, SBP premiums continued up until his death, and DFAS does not have any documentation that he remarried. 

12.  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. An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.  

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

14.  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.

15.  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.

16.  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 and the FSM were married on 9 October 1978.  He retired in September 1989.  At the time, he elected spouse and children SBP coverage based on the full amount.  They were divorced on 16 August 1999.  Their divorce decree stated she (the applicant) is "not waiving her interest in survivor benefits" but nowhere in the divorce decree or the incorporated separation agreement was there a stipulation that the FSM was ordered or required to maintain an SBP annuity for the former spouse.  

2.  Even though the FSM continued to pay the SBP premiums, neither the applicant nor the FSM made a deemed election for former spouse coverage within 1 year of the divorce.  Additionally, according to the FSM's death certificate, the FSM was married to someone else at the time he died. 

3.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.  

4.  The law allows a former spouse to deem the election.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election.

5.  SBP elections are made by category, not by name.  Additionally, the FSM remarried.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse (now widow), not his former spouse, if they have been married for at least 1 year.

6.  Notwithstanding the applicant's sincerity, the Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law.  The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current spouse renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current spouse was a party, divesting the current spouse of her interest in the SBP.

7.  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)                                         AR20130017745





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ABCMR Record of Proceedings (cont)                                         AR20130017745



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