IN THE CASE OF:	  

		BOARD DATE: 10 April 2014 

		DOCKET NUMBER:  AR20140004360 


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 his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

	a.  Her claim for the SBP should be approved.  It is her understanding that the initial claim was denied, but she has yet to receive a response in writing.  The error which caused the claim to be denied was not her fault.

	b.  She is the former spouse of the FSM who retired from the Army in 1987.  At the time of his retirement, they were married.  A part of his retirement process was signing the SBP Open Enrollment Election Form and they elected to maintain the SBP.

	c.  On 25 January 1995, they signed an Agreement of Stipulation and the agreement stated "Said coverage will not be discontinued or reduced in coverage in case of divorce."  Their divorce judgment was certified on 14 January 2008.  The Agreement and Stipulation agreed upon on 20 January 1995 is incorporated in this judgment.  The FSM died on 6 October 2013. 

	d.  In November 2013, she completed the necessary forms for submitting a claim for the SBP.  In January 2014, after not receiving any notification on the status of her claim, she contacted the Defense Finance and Accounting Service (DFAS) and was informed her claim had been denied.  
	e.  At no time during the retirement briefings was she informed of what must be done relevant to the SBP in the event of a possible divorce.  She was not informed that she had to notify DFAS of a divorce.  There was no mention of the requirement to notify DFAS within one year in the event of a divorce during the process of getting the Agreement and Stipulation from the Judge Advocate General office in 1995.

	f.  The divorce was finalized in a civilian court system 13 years later and, again, she was not informed of notifying DFAS.  However, being that it was a civilian court system, they too may not have known the rules and policies of the government concerning SBP for dependents.

	g.  Her former spouse gave 20 years of service defending this great nation.  She supported her spouse for 18 years of his military service.  They were blessed with three beautiful daughters and as a family provided support during his military career.         

	h.  As a spouse during her then husband's retirement process, no information was provided to her about the SBP rules and laws.  The only information made clear was the spouse had to elect or deny rights to the SBP.  Her husband did not know anything about the process of the SBP deemed election and neither did she.

	i.  At no time during the retirement briefings or during the separation agreement process was she advised or instructed verbally or in writing to complete any forms to be processed through DFAS in the event of a divorce.

	j.  As of the date of this letter, she has not received any notification in writing that her claim was denied by DFAS.   

3.  The applicant provides 9 enclosures outlined on page 3 of her statement. 

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 5 July 1967.  

2.  He married the applicant on 11 January 1969.

3.  His record contains a DD Form 4240 (Data for Payment of Retired Army Personnel), dated 27 April 1987, that shows the FSM and the applicant appeared before an SBP counselor and he elected spouse and children coverage, reduced amount.  

4.  He retired on 31 July 1987 in the rank of staff sergeant.

5.  The applicant provides a DD Form 2618 (SBP Open Enrollment Election), dated 15 September 1992, that shows he elected spouse coverage, maximum base amount.  

6.  On 20 January 1995, they signed an Agreement and Stipulation which states "At the time of his retirement, the husband maintained the SBP for the protection of his wife.  Husband agrees he will maintain the SBP on behalf of the current wife.  Said coverage will not be discontinued or reduced in coverage in case of divorce.  Said plan is presently costing the husband $68.70 per month."

7.  He and the applicant divorced on 14 January 2008.  Their divorce judgment states the Agreement and Stipulation entered into by the parties on 20 January 1995 is hereby incorporated into this judgment as if fully set out herein.  

8.  There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.

9.  DFAS records show the FSM married Anna on 18 October 2008.

10.  The FSM died on 6 October 2013.  His death certificate shows he was married to Anna.  Information obtained from DFAS indicates Anna is currently in receipt of the SBP annuity.

11.  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.  Elections are made by category, not by name. 

12.  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.

13.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

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's contentions were carefully considered.  However, SBP elections are made by category, not by name.  As long as she was the FSM's wife, she was the SBP beneficiary.  Once they divorced she was no longer a beneficiary.

2.  There is no evidence to show the FSM requested that his SBP coverage be changed to former spouse coverage or that the applicant made a request for a deemed election within the statutory 1-year time limit.

3.  There is evidence to show the FSM remarried on 18 October 2008.  At the 
1-year anniversary of their marriage his spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

4.  While not at all unsympathetic to the applicant's position, the law relating to the SBP is clear with regard to when and how former spouse coverage can be established.  It is equally clear with respect to how and at what point a new spouse gains eligibility to take as the surviving spouse.  In this case, former spouse coverage was never established.  The initial election of spouse and child coverage remained in place.  The applicant’s and FSM's children aged out.  He fathered no other children.  The spouse portion of his original election was simply dormant from the time the couple divorced until his remarriage plus twelve months.  Divorce decree or not – equity or not – from that point forward the ABCMR lost the power to change the FSM's record in such a way as to divest Anna of her statutorily recognized interest in the SBP and establish former spouse coverage for the applicant, because such action would be a gross violation of Anna's due process rights.  Accordingly, the only avenues of relief available to the applicant are to prevail upon her former husband's widow to voluntarily relinquish her interest or to seek to have a court divest Anna of her annuity in the course of litigation.  Only then, pursuant to a court order with Anna having had an opportunity to protect her property interest in the proceeding, could the ABCMR make a correction effectively stripping her of her entitlement to the SBP annuity.    

5.  In view of the foregoing, the evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.
      
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)                                         AR20140004360





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ABCMR Record of Proceedings (cont)                                         AR20140004360



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