IN THE CASE OF:  	  

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140011503 


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 she is the eligible beneficiary to receive a Survivor Benefit Plan (SBP) annuity as a former spouse.

2.  The applicant states that she sent their divorce decree to the Office of Personnel Management (OPM), Court Ordered Benefits Branch in Washington, DC, as she was instructed to do.

   a.  The FSM's Retiree Account Statement for July 2013 shows her as the current beneficiary and she did not realize there was a problem.

   b.  On 25 June 2014, the Defense Finance and Accounting Service (DFAS) informed her that they never received the divorce decree and the FSM's current spouse would receive the SBP benefit upon his death despite the instructions in the divorce decree.

   c.  She adds that the FSM's SBP premiums are current.

3.  The applicant provides copies of her letter to OPM, the divorce decree, and the FSM's retiree account statement.


CONSIDERATION OF EVIDENCE:

1.  The FSM's date of birth (DOB) is 29 April 1939.  He had prior active duty service in the Regular Army and U.S. Army Reserve (USAR) between 
12 October 1956 and 4 March 1972.  After a break in military service he had Reserve service in the Army National Guard of the United Sates and USAR from 12 July 1972 through 7 November 1985.

2.  On 28 August 1979, the FSM completed a DD Form 1883 (SBP Election Certificate) wherein he elected Option C (Immediate Coverage) for his (then) spouse (Ellen W.) and children under the Reserve Component SBP (RCSBP).

3.  On 24 March 1983, the Director, Retired Activities, Office of The Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, notified the FSM that he had completed the required years of qualifying service to receive retired pay at age 60.

4.  The FSM and Ellen W. divorced on 24 February 1987.  Their Property Settlement Agreement, dated 1 June 1986, was incorporated into the final decree of divorce.  It included a mutual waiver of pension rights, including retirement plans or annuities, retirement accounts, and the FSM's U.S. Government and USAR pensions.

5.  The FSM and applicant (Jean M.) married on 28 November 1987.

6.  On 2 July 1998, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) that shows in:

   a.  Section VI (Dependency Information), he indicated he was married to Jean M. (DOB:  17 February 1951) and that he did not have any dependent children;

   b.  Section VII (SBP Election):

* item 28 (Beneficiary Category), he elected spouse only coverage
* item 29 (Level of Coverage), he elected the coverage to be based on full gross retired pay

   c.  Section IX (Certification) shows the FSM and a witness signed the document on 2 July 1998.

7.  USAR Personnel Command, St. Louis, MO, Orders P-03-301573, dated 
8 March 1999, placed the FSM on the retired list effective 29 April 1999.

8.  In support of her application, the applicant provides the following documents.

   a.  Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Marital Settlement Agreement Without Minor Children, that shows the applicant and FSM entered into the agreement on 11 March 2011.

* Section IV (Life Insurance) shows "Husband agrees to maintain his Survivor Benefits through the United States Military.  Husband also agrees to leave the Wife as a beneficiary of his Survivor Benefits."
* Section VII (Personal Property), paragraph D (Individual Retirement Accounts and Retirement Accounts) shows, in pertinent part:

* the Civil Service Retirement shall be retained by the Husband
* the Husband's Military Retirement shall also be retained by the Husband
* the Wife's Military Retirement shall be retained by the Wife
(it was expected to start in April 2011)

   b.  Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Final Judgment of Dissolution of Marriage, that shows the applicant and FSM divorced on 22 March 2011.  It shows in paragraph 3 (Marital Assets and Liabilities), in pertinent part, the Marital Settlement Agreement entered into on
11 March 2011, "…which was executed voluntarily after full disclosure and is approved and incorporated in this judgment by reference, and the parties are ordered to comply with it.  The agreement shall survive the Final Judgment and not merge into it.  The Court reserves jurisdiction to enforce the provisions of the agreement."

   c.  A letter to OPM, Court Ordered Benefits Branch, Washington, DC, dated 28 June 2011, subject Survivor Benefits to be Retained by Ex-Wife, that shows the applicant forwarded a copy of the Final Judgment of Dissolution of Marriage and Marital Settlement Agreement to OPM.  She advised that the FSM was to maintain his survivor benefits through the U.S. military and that he agreed to keep her as beneficiary.  She added that the FSM had made the statement that he could change the survivor benefits to a new wife and she would never know that he did it.  She asked if there was any way she could be notified if he attempted to change her as the beneficiary.


   d.  The FSM's DFAS Retiree Account Statement for net pay due as of 1 July 2013 that shows for:

* SBP Coverage:

* Spouse only, the annuity payable is 55% of the annuity base amount of $2,694.40, which is $1,481.92
* Spouse DOB:  17 February 1951

* Arrears of Pay Beneficiary Information:

* Name:  Jean Marie W____
* Share:  100 percent
* Relationship:  Wife

9.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

10.  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.

11.  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.


12.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

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

2.  Records show the FSM qualified for retired pay and that he was placed on the retired list in April 1999.  At that time, he elected SBP spouse only coverage (full amount) and the applicant was the designated SBP beneficiary.

3.  The applicant and FSM divorced on 22 March 2011.  The final decree of divorce included the requirement for the FSM to maintain his former spouse (the applicant) as his SBP beneficiary.

4.  Although the applicant's DOB is shown in the SBP section of the FSM's Retiree Account Statement, there is no evidence of record that shows the FSM changed his SBP category from "spouse" to "former spouse" coverage.  There is also no evidence that the applicant notified DFAS in writing within 1 year of the court order requesting a "former spouse" SBP election be deemed to have been made by providing DFAS a copy of the divorce documents.

5.  The evidence of record shows the applicant submitted a copy of the Final Judgment of Dissolution of Marriage and Marital Settlement Agreement to OPM on 28 June 2011.  However, this submission does not constitute written notification to DFAS with respect to the FSM's military SBP.

6.  The evidence of record shows the FSM retired from both the U.S. Army and U.S. Government Civil Service.  The evidence of record also shows it was expected that the applicant would retire from U.S. military service in April 2011.  Thus, it is reasonable to conclude that she was aware that military retired pay and benefits, including the SBP, fall under the purview of DFAS.  However, it is not clear why the applicant did not notify DFAS in writing within 1 year of the court order requesting a "former spouse" SBP election be deemed to have been made.

7.  The evidence of record shows the FSM retained spouse SBP coverage and that the applicant is the designated beneficiary.  However, the evidence of record also shows a DFAS official recently informed the applicant that a copy of the divorce decree was never received and the FSM's current spouse (emphasis added) would receive the SBP benefit upon his death despite the instructions in the divorce decree.

8.  It cannot be determined with any degree of certainty if or when the FSM remarried subsequent to his divorce from the applicant.

9.  Thus, based on the available evidence, the Board will not take any action to prevent a lawful beneficiary (i.e., a current spouse) from receiving those benefits. To do so would constitute an unconstitutional taking without due process of law.

10.  If the FSM has not remarried since his divorce from the applicant, then a notarized, sworn affidavit from the FSM affirming his marital status from that date to the present is required.  Otherwise, if the FSM has remarried, 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 over the marriage of the applicant and the FSM.  This court action would have to include the FSM's current spouse as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, the applicant can apply to the 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 relinquishing her right to the SBP payment.

11.  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 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)                                         AR20140011503



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ABCMR Record of Proceedings (cont)                                         AR20140011503



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