IN THE CASE OF:  
	  

		BOARD DATE:  14 April 2015	  

		DOCKET NUMBER:  AR20140013264 


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 that the records of her former spouse, a former service member (FSM), be corrected to show he made a former spouse Survivor Benefit Plan (SBP) election and that the election was submitted and approved within one year of their divorce.

2.  The applicant states:

	a.  The FSM did not inform her that he was retiring; therefore, any information pertaining to former spouse benefits was not provided to her.

	b.  The divorce decree indentifies that the applicant was to make sure the proper documents were submitted through the appropriate channels to ensure she remained entitled to SBP benefits in the event of his death.

	c.  She had an issue obtaining part of his retirement pay, but the issue was resolved so she thought everything was correct until she received notification that the pay was terminated.  She was unaware there was an issue with the SBP because it was included in the divorce decree.

	d.  She was never provided any guidelines pertaining to former spouse benefits and she does not have training in the personnel field; so, being a former spouse, unless information was provided to her, she was at a disadvantage.  

	e.  She assumed that when the Defense Finance and Accounting Service (DFAS) authorized retirement pay on 20 March 1996, the DFAS legal section was provided an entire copy of the divorce decree. 

	f.  She received notification from DFAS that the retired/retainer pay was terminated.  She contacted DFAS in 2013 and she informed them of the divorce decree.  She was told to resubmit her paperwork and that is when she discovered the issue with the SBP.

	g.  She feels she is being penalized for something her ex-spouse should have been responsible for.  It is not like he took care of her and the child.  She was a full-time employee and she too worked hard during Operation Desert Storm.

3.  The applicant provides:

* the applicant's Final Decree of Divorce (pages 1, 25, 26, 27, 28, and 34)
* DD Form 2293 (Application for Former Spouse Payments from Retired Pay), undated
* a letter from DFAS, dated 20 March 1996
* a letter from DFAS, dated 4 October 2012
* a letter from DFAS, undated
* a letter from DFAS, dated 14 November 2013
* a letter from DFAS, dated 11 April 2014
* a Certificate of Appreciation, Operation Desert Shield/Desert Storm, issued by Headquarters, Forces Command

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 9 April 1980.  He and the applicant married on 16 June 1982.  

2.  The FSM retired on 1 May 1995.  The FSM's DD Form 2656 (Data for Payment of Retired Personnel), the form used to elect participation in the SBP, is not available for review. 

3.  The FSM and the applicant divorced on 11 December 1995.  The Final Decree of Divorce shows the court ordered the FSM to maintain SBP coverage on the former spouse (the applicant).  

4.  There is no evidence at DFAS indicating the FSM ever complied with the Final Decree of Divorce to change his SBP election from spouse coverage to former spouse coverage within one year of the date of the divorce.  There is also no evidence the applicant made a deemed election within one year of the court order.

5.  The current marital status of the FSM is unknown.

6.  On or around 15 October 2013, the applicant submitted to DFAS a DD Form 2656-10 (SBP/Reserve Component SBP Request for Deemed Election).  In letters dated 14 November 2013 and 11 April 2014, DFAS informed her that her attempt to deem an SBP election for former spouse coverage could not be processed because her application was received more than one year after the court order.

7.  She provided a DD Form 2293 and letters from DFAS, dated 20 March 1996 and 4 October 2012, that pertain to the payment of a portion of the FSM's retainer/retired pay to the applicant.  This issue is unrelated to the SBP.  

8.  She also provided a Certificate of Appreciation, Operation Desert Shield/Desert Storm, issued by Headquarters, Forces Command, which she received in appreciation of her duties in support of Operations Desert Shield and Desert Storm.  

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.  Elections are made by category, not by name.  

10.  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.  

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

12.  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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

13.  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 one 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.

14.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the records of the FSM should be corrected to show he elected former spouse SBP coverage has been carefully considered.  

2.  The Final Decree of Divorce required the FSM to maintain SBP coverage on the applicant.  However, there is no evidence showing the FSM complied with the court order by changing his election from spouse to former spouse coverage. There is also no evidence the applicant made a deemed election within one year of the court order as required by law.

3.  Because SBP elections are made by category, not by name, as long as the applicant was the FSM's spouse, she was the SBP beneficiary.  Once they divorced, she was no longer a beneficiary.  

4.  The FSM’s current marital status is unknown.  Based on this fact, the Army Board for Correction of Military Records may not act to terminate the FSM's current spouse’s (if remarried) rights to an SBP annuity (in the event of the FSM's death) by granting the applicant the SBP, as doing so would deprive the FSM's current spouse of a property interest without due process of law.  The applicant would have to provide a signed and notarized affidavit from the FSM's current spouse relinquishing her rights in the SBP in favor of her own, or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's current spouse as a party, declaring that she is the rightful beneficiary of the FSM's SBP coverage.  

5.  The applicant's contentions were noted; however, under the present conditions, there is no effective relief for her unless she can provide evidence showing the FSM did not remarry, the FSM's current spouse (if remarried) is willing to relinquish her entitlement, or a State Court of competent jurisdiction declares the applicant is the rightful beneficiary of the FSM's SBP coverage.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20140013264



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ABCMR Record of Proceedings (cont)                                         AR20140013264



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