IN THE CASE OF:	  

		BOARD DATE:	 16 December 2014 

		DOCKET NUMBER:  AR20140005366 


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 former spouse, a retired service member (SM), to show she made a deemed election for former-spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states:

* her court-ordered death benefits were changed to the retired SM's new spouse
* she is unmarried and their divorce decree specified that the SM not change, modify, amend, withdraw, or alter the election of her as the beneficiary in any way

3.  The applicant provides her marriage certificate, divorce decree, and related documents.

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 applicant and the SM were married on 15 May 1980.

3.  On 19 October 2005, the applicant and the SM were divorced.

4.  The applicant provided a copy of the divorce decree that shows:

* the court ordered the applicant to be designated as beneficiary for 
50-percent of the SM's SBP annuity
* the court ordered the applicant to apply to the Defense Finance and Accounting Service (DFAS) to be deemed a former-spouse beneficiary to the SM's SBP annuity
* the court ordered the applicant to be responsible for any and all costs associated with the SM's SBP as a former-spouse beneficiary
* the court ordered the SM not to modify, amend, withdraw, or alter the election of the applicant as a former-spouse beneficiary of his SBP annuity

5.  On 31 May 2010, the SM retired.

6.  DFAS records show no evidence of a deemed election on behalf of the applicant.  DFAS records further show the SM remarried.

7.  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.

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

9.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the SM'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.

10.  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.

11.  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 SM is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's divorce decree ordered designation of her as a 
50-percent beneficiary of the SM's SBP, she made no timely deemed election of former-spouse coverage.

2.  DFAS records show the SM remarried.

3.  SBP elections are made by category, not by name.  Accordingly, because the SM had a spouse-only SBP election in effect, his current spouse is the lawful beneficiary of his SBP annuity.  The ABCMR will not take any action that would cause the lawful beneficiary to be ineligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

4.  The ABCMR may not divest the SM's spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the SM.  This court action would have to include the SM's current spouse as a party in order to protect her interests.

5.  If, upon reviewing the matter with the SM's current spouse as a party, a court determines the applicant is entitled to former spouse coverage under SBP, she may apply to the ABCMR for reconsideration.  A notarized statement from the SM's current spouse stating she knowingly and voluntarily relinquishes her interest in the SBP would also be a basis for reconsideration.  The applicant is further advised that SBP is not divisible under Federal statute.  She is either owed the entire annuity as a former spouse or no portion whatsoever.





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 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)                                         AR20140005366



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ABCMR Record of Proceedings (cont)                                         AR20140005366



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