BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140008753 


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 former service member (FSM), requests correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse based on their divorce decree.

2.  The applicant states she never got proper help to file for SBP benefits.  She didn't receive any forms or any other documents besides a letter of approval upon filing a "former spouse form."

3.  The applicant provides a self-authored letter, a Domestic Relations Order (Military Retirement), and a final divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 26 April 1983.  He enlisted in the Regular Army on 10 October 1989.

2.  The applicant provided the final divorce decree and Domestic Relations Order which shows the FSM and the applicant were divorced on 8 March 2007.  The Domestic Relations Order stated in part:

	a.  "The Court further finds that [applicant] is presently named a spouse beneficiary of [FSM]'s Armed Forces SBP (which is deemed to include the Reserve Component SBP) and that [FSM]'s election to provide the SBP benefits to [applicant] should be continued by [applicant]'s being designated as a former spouse beneficiary and that [applicant]'s designation as a former spouse beneficiary should not be modified, amended, withdrawn, reduced, or altered to [applicant]'s detriment by [FSM] during [applicant]'s lifetime, and IT IS SO ORDERED."

	b.  "IT IS THEREFORE ORDERED that [FSM] shall immediately designate [applicant] as his former spouse beneficiary under the Armed Forces SBP as his former spouse and that [applicant] shall continue to remain beneficiary as former spouse under that plan."

	c.  "IT IS ORDERED that [FSM] shall immediately obtain, fully complete, sign, and return to the entity required to effect the Armed Forces SBP election all documents, papers, and forms necessary to provide the Armed Forces SBP benefits to [applicant's name] as [FSM]'s former spouse and shall immediately provide [applicant's name] copies of these documents, papers, and forms."

	d.  "IT IS ORDERED that [FSM] shall not during [applicant]'s lifetime modify, amend, withdraw, or in any other manner alter the election to name [applicant] as a former beneficiary of [FSM]'s Armed Forces SBP."

3.  The FSM's service record is void of evidence that indicates he made a voluntary election or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.

4.  The FSM married T____ D. on 16 September 2009.

5.  At the completion of 20 years of service, the FSM retired from active service on 31 October 2009.

6.  On 3 November 2009, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected SBP coverage for spouse only, full gross pay.  The FSM's spouse is listed as T____ D.

7.  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 family members.  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 coverage for former spouses of retiring members.

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

10.  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 serving on active duty and had not yet made an SBP election.

11.  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.

12.  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 regarding being misinformed about her pending survivor benefits are acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.

2.  The evidence of record shows the applicant and the FSM were divorced on 8 March 2007.

3.  The court ordered that the FSM should designate the applicant, his former spouse, as beneficiary under the SBP and continue to remain his beneficiary as former spouse under the plan.  However, there is no evidence which indicates the FSM or the applicant notified the Defense Finance and Accounting Service or any other appropriate agency of the conditions of the divorce related to SBP coverage within 1 year of their divorce as required by law.  Although he was not yet eligible to make an SBP election when they divorced, had the appropriate agency been notified in a timely manner, the matter would have remained pending until he retired.  

4.  The applicant retired on 31 October 2009 and he elected to participate in the SBP for spouse coverage.  He was married to his current spouse, T____ D., at that time.

5.  Since the lawful beneficiary of the FSM's SBP is his current spouse, and in the absence of a timely request for a deemed election, the ABCMR cannot take away the current spouse's right to the SBP without her knowing and voluntary consent or due process of law which may involve legal action in a court of competent jurisdiction with the FSM's current spouse joined as a party.  Therefore, the applicant's request cannot be granted 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 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)                                         AR20140008753



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ABCMR Record of Proceedings (cont)                                         AR20140008753



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