BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017907 


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 retired service member (RSM), requests that she be named the beneficiary his Survivor Benefit Plan (SBP).  

2.  The applicant states the RSM was required by court order to maintain her as the beneficiary of his SBP.  

3.  The applicant provides:

* Marriage License
* Final Decree of Divorce
* a letter

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.  Evidence shows the RSM and the applicant, the former C______ D______ H_____ , married on 20 September 1975.

3.  The RSM's record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 11 March 1992, which shows he elected spouse only SBP coverage in the reduced amount of $378.00.  The applicant listed his spouse's name as J_______ M____ B_____ and this person authenticated the election with her signature on 5 March 1992.

4.  The RSM's record contains a Servicemen's Group Life Insurance Election and Certificate, signed and dated by the RSM on 8 December 1992, which shows he named the applicant as principal beneficiary.

5.  On 31 January 1993, the RSM retired and he was subsequently placed on the retired list.

6.  On 26 April 1993, the applicant and the RSM were divorced.  The Final Decree of Divorce issued in the Chancery Court for Montgomery County, Tennessee at Clarksville, stated the "Plaintiff [the RSM] is further ordered to maintain the survivor’s benefit insurance, naming the Defendant [the applicant] as beneficiary to insure her payment in the event of Plaintiff’s death."

7.  According to information maintained at the Defense Finance and Accounting Service (DFAS) the RSM's account listed no beneficiary for the SBP effective 1 July 2007.

8.  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.  An election, once made, was irrevocable except in certain circumstances.  

9.  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.  

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 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.

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 person is received within one year of the date of the court order or filing involved.
  
DISCUSSION AND CONCLUSIONS:

1.  The evidence appears to show the RSM listed someone other than the applicant as his spouse upon his election for SBP coverage on 5 March 1992.   However, SBP elections are made by category, not by name.  Since SBP elections are made by category, not by name, once the RSM and applicant were divorced in April 1993, she was no longer his spouse and no longer an eligible SBP beneficiary.  

2.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

3.  The law allows a former spouse to deem the election.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within one year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.

4.  The RSM's current marital status is unknown.  Based on this fact, the ABCMR may not act to terminate the RSM's current spouse's (if remarried) rights to an SBP annuity (in the event of the RSM'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 RSM'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 RSM's current spouse as a party, declaring that she is the rightful beneficiary of the RSM'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 RSM did not remarry, the RSM'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 RSM'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)                                         AR20140017907





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ABCMR Record of Proceedings (cont)                                         AR20140017907



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