IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007441 


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, in effect, that the record of her former husband, a former service member (FSM), be corrected to show her as the former spouse beneficiary for the FSM's Survivor Benefit Plan (SBP) benefits.  

2.  The applicant states that while the FSM had been paying the SBP premiums she was unaware of the requirement to change his SBP beneficiary election to that of "former" spouse.  It was the FSM's intention that she be allowed to continue as the beneficiary. 

3.  The applicant provides:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Consent Order
* Voluntary Separation and Property Settlement Agreement
* Judgment of Absolute Divorce

CONSIDERATION OF EVIDENCE:

1.  Court documents show that on 14 May 1984 the applicant and FSM were married.

2.  On 31 May 2008, the FSM retired from active duty in the rank of master sergeant after completing more than 20 years of active service. 

3.  A DD Form 2656 (Data for Payment of Retired Personnel) shows in:

* Section VIII (Dependency Information), item 22 (Spouse), the name of the applicant 
* Section VIII, item 25 (Dependent Children), a daughter born in March 1999
* Section IX (SBP Election), item 26 (Beneficiary Category(ies), the FSM elected spouse and dependent children coverage
* Section IX, item 27 (Level of Coverage), the FSM elected coverage on the full amount of his retired pay

4.  On 6 December 2010, the Circuit Court for Anne Arundel County, MD, ordered the FSM be awarded a Judgment of Absolute Divorce from the applicant.  A separation agreement completed in October 2010 was incorporated into the divorce decree.  It shows that the applicant was awarded a portion of the FSM's disposable military retired pay.  It stated that the applicant would be entitled to survivor benefits the cost of which would be paid from her marital share of his disposable military retired pay.

5.  The available records do not show the FSM made a voluntary election to change his SBP election from spouse and child to former spouse coverage within 1 year after their divorce or that the applicant requested a deemed election of former spouse coverage within that same period of time.

6.  There is no available Retiree Account Statement or other evidence showing whether the FSM has currently been paying premiums for spouse and child SBP coverage. 

7.  The record is silent on further SBP transactions between the FSM and Defense Finance and Accounting Service (DFAS).  

8.  On 30 May 2014, DFAS stated in a letter to the FSM that they had recently been notified that he was currently divorced from the applicant.  DFAS records reflected that she was currently listed as the spouse beneficiary under his SBP.  DFAS stated that a spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision that makes former spouse coverage an automatic benefit.  The only means by which the divorced spouse can become an SBP beneficiary is if former spouse coverage is elected by the service member or a deemed election is made on the basis of a court order.  The request to deem an SBP election must be made within 1 year of the date of the original court order which awarded the coverage.  In order to update his SBP account accurately, he needed to forward a copy of his complete final divorce decree with the judge's signature and the completed DD Form 2656-6 (SBP Election Change Certificate). 
9.  In the processing of this case, a member of the Board staff contacted the applicant regarding the FSM's marital status.  She indicated in an email response that the FSM had remarried in March 2011.

10.  Public Law 92-425, the SBP, enacted on 21 September 1972, 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.  It required that retiring members and spouses be informed of SBP options and effects.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

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.  Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant and FSM were divorced on 6 December 2010.

2.  The applicant’s request for correction of the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered.  The divorce decree, which includes the separation agreement, stipulated that she would be entitled to survivor benefits, the cost of which would be paid from her marital share of his disposable military retired pay.

3.  There is no evidence the FSM attempted to comply with the divorce decree by submitting a voluntary request to DFAS to have his SBP election changed from spouse to former spouse coverage.  It appears the applicant failed to request a deemed election within 1 year of their divorce at least in part as a result of unawareness with respect to the requirement.

4.  There is, however, a new issue in this case in that evidence indicates the FSM remarried in March 2011.  Absent an election to change the previous spouse coverage to former spouse coverage prior to his remarriage, the original suspended spouse coverage would have automatically gone into effect in favor of the new spouse upon their 1-year anniversary.  

5.  As such, notwithstanding the divorce decree, the Board may not divest the FSM's current spouse of her interest in the SBP without an order from a State court of competent jurisdiction or other document showing she knowingly and voluntarily relinquishes her right to the FSM's SBP.  That is, the Board cannot take the SBP from the FSM's current spouse without violating her constitutional right to due process of law.  Therefore, this court action would have to include the FSM's current spouse as a party in order to protect her rights.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to this 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 current spouse irrevocably renouncing her right to the FSM's SBP.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.

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)                                         AR20140007441



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ABCMR Record of Proceedings (cont)                                         AR20140007441



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