IN THE CASE OF: 

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130021045 


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 changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states she and the FSM were married from October 1973 until November 1992.  Their divorce decree stipulated that she was supposed to get a portion of the FSM's Army retirement, but she never did.  She and the FSM had two children and the FSM stayed in touch with her and their children until 1995. The FSM was supposed to elect SBP coverage for her when he retired in 1997.  Despite efforts to locate the FSM, she was unable to do so in the years that followed.  She learned of the FSM's death in April 2013.  She asserts that she is entitled to the FSM's SBP.

3.  The applicant provides copies of -

* their marriage certificate
* their son's birth certificate
* their divorce decree
* the FSM's death certificate
* her claim for SBP and unpaid compensation of deceased member

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.  The FSM had prior honorable active duty enlisted service in the Regular Army (RA) from 15 September 1972 through 9 September 1975.  After a break in military service, he enlisted in the U.S. Army Reserve on 20 August 1981 and then, on 5 November 1981, he again enlisted in the RA.

3.  The applicant provides a State of South Carolina, County of Spartanburg, Decree of Divorce, that shows the applicant and FSM were divorced on 
14 December 1992.  It also shows, in pertinent part, the court ordered "That the Defendant [i.e., the FSM] remit the sum certain of $600.00 per month for the maintenance and support of the two minor children of the parties with the said support to be paid to the Defendant [sic] on the first day of each and every month beginning 1 November 1992.  And, further, that the said support shall be paid through the Clerk of Court for the County of Spartanburg, State of South Carolina with collection costs thereon as provided by law or that the said sum be paid monthly by allotment directly to the Plaintiff from the United States Military."  It further shows, "That the Court expressly reserves the division of the [FSM's] retirement account with the United States Military.  And, further, that the [FSM] execute any and all documents necessary or required by the appropriate federal agency to effect the expressed reservation of the said military retirement account."

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the FSM was honorably retired from active duty on 23 March 1997 and placed on the Temporary Disability Retired List (TDRL) effective 24 March 1997.

5.  U.S. Total Army Personnel Command, Alexandria, VA, Orders D252-3, dated 3 December 1998, removed the FSM from the TDRL because of permanent physical disability and permanently retired him effective 31 December 1998.

6.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS) was asked to verify information relevant to the FSM's SBP election, coverage, and participation.  DFAS provided a copy of the 
DD Form 2656 (Data for Payment of Retired Personnel) it has on file.  It shows in:

   a.  Section VI (Dependency Information), the FSM indicated he was married to Bonnie A. (the applicant) and that he had two dependent children;

   b.  Section VII (SBP Election) -

* item 28 (Beneficiary Category), he elected spouse and children coverage
* item 29 (Level of Coverage), he elected the coverage to be based on full gross retired pay

   c.  Section IX (Certification) shows the FSM and a witness signed the document on 3 February 1997.
   
7.  The applicant also provided copies of the following documents:

   a.  State of South Carolina, County of Spartanburg, Marriage Certificate, that shows the FSM and the applicant married on 30 October 1973.

   b.  Commonwealth of Virginia, Department of Health, Division of Vital Records, Certificate of Live Birth, that shows Rickey Lamont B-----, Jr. was born in April 1985 and that the FSM and the applicant are listed as his parents.

	c.  Commonwealth of Virginia, Department of Health, Division of Vital Records, Certificate of Death, that shows the FSM died on 7 July 2004, he was married to Renee B-----, and she was listed as the informant of the FSM's death.

   d.  Forms and documents, dated 15 November 2013, that show the applicant and her son (Rickey L. B-----, Jr.) submitted claims for the FSM's SBP and unpaid compensation, respectively.

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.

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.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

10.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1-year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to provide coverage.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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 decree of divorce.  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 1-year of the date of the court order of filing involved.

11.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show his participation in the SBP with former spouse coverage because the FSM failed to change the designated beneficiary category from spouse to former spouse SBP coverage within 1-year of the date of their divorce.

2.  On 14 December 1992, the applicant (Bonnie A.) and the FSM were divorced (emphasis added).  The divorce decree shows that the Court ordered the FSM to execute the documents required "to effect the expressed reservation of the said military retirement account."  It appears by this language that the Court intended to visit the issue of dividing the FSM's retired pay at a future point and that the FSM was not to do anything to dissipate the asset, if and when he earned a retirement benefit.

3.  During his retirement processing, on 3 February 1997, the FSM completed a DD Form 2656 and he indicated (emphasis added) that he was married to the applicant and he elected spouse and children coverage based on full gross retired pay.  It is not clear why he did not elect former spouse (with children) coverage at that time.

4.  The FSM was retired from active duty on 23 March 1997 and placed on the TDRL effective 24 March 1997.  He was permanently retired effective 
31 December 1998.

5.  There is no evidence that the FSM or applicant notified DFAS to change the FSM's SBP coverage from spouse (and children) to former spouse coverage within 1-year of the divorce decree.

6.  The evidence of record shows the FSM died on 7 July 2004 and that he was married to Renee B----- at the time of his death (emphasis added).  (The date of their marriage cannot be determined from the available evidence.)

7.  The evidence of record shows that an SBP annuity has not been paid to the applicant because neither the FSM nor the applicant notified DFAS within 1 year from the date of their divorce to change the FSM's SBP beneficiary to former spouse.

8.  It is recognized that the divorce decree references reservation of the FSM's Army "military retirement account" and that the FSM was to execute documents to maintain his retirement.  However, it is noted that the divorce decree does not specifically address the FSM's SBP.  Unfortunately, it appears the parties never went back to court to clarify the reserved issue.

9.  Since the FSM died with spouse SBP coverage in effect, his legal spouse at the time of death is the lawful beneficiary of his SBP.  Thus, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

10.  The Board may not divest the FSM's widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM's widow as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration.  In the alternative, the Board may reconsider the applicant's request if she obtains a notarized, sworn affidavit from the FSM's widow relinquishing her right to the SBP payment.

11.  Additionally, if the applicant is able to show when the FSM married Renee B. and that marriage post-dates his SBP election, and that he was not married to any other person at the time he elected SBP spouse coverage, the Board may reconsider the case as a voluntary election of coverage for applicant's benefit.

12.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20130021045



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ABCMR Record of Proceedings (cont)                                         AR20130021045



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