IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140002583 


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 reconsideration of her request for correction of the FSM's records to show she is eligible to receive a Survivor Benefit Plan (SBP) annuity as a former spouse.

2.  The applicant states that she found one of the three letters she received from the Defense Finance and Accounting Service (DFAS) regarding the FSM's SBP and is providing it in support of her request.

   a.  She states that she remembers the FSM listed her as the beneficiary for his SBP because the judge instructed the FSM to do so when they were divorced and the judge also awarded her half of the FSM's military retired pay.

   b.  When she called the U.S. Army Human Resources Command (HRC), three different officials told her that her name, social security number, and personal information were on record and "they all said I was eligible."  However, the Army Board for Correction for Military Records (ABCMR) decision determined that she was not eligible for former spouse SBP.  
   
   c.  She adds that her attorney has filed a court action regarding this matter because they sent all of the necessary documents to support her claim.

3.  The applicant provides a copy of a DFAS letter, dated 10 January 2000.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120017628, on 9 April 2013.

2.  The FSM had prior active duty service in the Regular Army and U.S. Army Reserve (USAR) between 8 October 1974 and 28 August 1984.  He enlisted in the Army National Guard (ARNG) on 29 August 1984.

3.  The FSM and applicant married on 31 May 1977.

4.  On 4 April 1997, the FSM was notified, in a memorandum from the State of Wisconsin, Department of Military Affairs, that he had completed the necessary qualifying service to receive retired pay at age 60 upon application.

5.  On 7 June 1997, the FSM completed a DD Form 1883 (SBP Election Form) wherein he elected Option C (Immediate Coverage) for his spouse and children under the Reserve Component SBP (RCSBP).

6.  On 28 June 1997, the FSM was discharged from the ARNG, in the rank/grade of staff sergeant/pay grade E-6, and transferred to the USAR Retired Reserve.

7.  On 17 November 1998, the applicant and FSM were divorced.  The Decree of Divorce issued by the State of Wisconsin Circuit Court, Rock County, approved a marital settlement agreement entered into by the applicant and FSM, as modified in open court, and incorporated the modified agreement into the divorce decree.  The property division portion of the marital settlement agreement provided for the applicant to receive one-half of the FSM's U.S. Government Pension.  A review of the divorce documents revealed no special provisions for payment of an RCSBP/SBP annuity.

8.  On 13 February 2009, the FSM died at age 55.  The FSM's Certificate of Death shows his status as married and lists a current spouse (Maria D-- R------  L----) as the informant.

9.  In ABCMR Docket Number AR20120017628, the Board considered the available evidence and concluded the FSM's spouse, Maria D—R------ L----, was the properly designated SBP beneficiary.

10.  In support of her current request for reconsideration, the applicant provides a copy of a DFAS letter, dated 10 January 2000, that shows the applicant's application for a portion of the FSM's retired/retainer pay as a division of property under the Uniformed Services Former Spouses' Protection Act (10 USC 1408) had been received and all requirements under the Act and regulations were met.

   a.  The FSM was to be notified and given 30 days to contest the court order.  If he did not contest the order, or DFAS determined that his objection was invalid, payments would commence 60 to 90 days after the date the FSM retires and begins receiving retired/retainer pay.  The applicant was informed the maximum payment could not exceed 50 percent of the FSM's disposable retired pay.

   b.  She was advised that the FSM was not (then) receiving retired pay.  If he met all the necessary requirements, he could apply for retirement benefits (including retired pay) at age 60.

   c.  She was also advised that, if her divorce decree specifies that she was to be designated as a former spouse beneficiary for the SBP, she must make a "deemed election" for SBP coverage within one year of the date of her divorce directly to the Retired Pay office.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.

12.  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.  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 or filing involved.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and evidence she provides have been carefully considered.  

2.  Records show the FSM completed the necessary qualifying service to receive retired pay at age 60 upon application.  The evidence of record also shows the divorce court awarded the applicant one-half of the FSM's military retired pay. Unfortunately, the FSM died at age 55.  As such, any matter related to eligibility for receipt of the FSM's military retired pay became moot at that time.

3.  However, the RCSBP/SBP provides a means by which the surviving spouse or the divorced (former) spouse may receive a survivorship annuity (emphasis added) based on the service member's retired pay.

4.  On 7 June 1997, the FSM submitted his RCSBP application and he elected RCSBP Option C (Immediate Coverage) for his spouse (and children) based on full retired pay.

5.  It is acknowledged that the divorce decree (marital settlement agreement) provides for the applicant to receive one-half of the FSM's pension.  However, it makes no specific provision for payment of an SBP annuity to the applicant as a former spouse.

6.  There is no evidence of record and the applicant fails to provide any evidence that shows the FSM elected former spouse RCSBP/SBP protection incident to their divorce.  As a result, given the FSM was married at the time of his death and his RCSBP election continued to provide for spouse coverage and not former spouse coverage, the FSM's spouse at the time of his death is the lawful beneficiary for his RCSBP.

7.  As such, Maria D—R------ L---- is the lawful beneficiary of his RCSBP, unless they were divorced.  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.

8.  Regrettably, based on the available evidence of record, 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 to amend the decision of the ABCMR set forth in Docket Number AR20120017628, dated 9 April 2013.




      ___________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)                                         AR20140002583



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ABCMR Record of Proceedings (cont)                                         AR20140002583



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