IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140018015 


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 deceased former service member (FSM), requests correction of his records to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage.

2.  The applicant states:

	a.  She and the FSM sent letters to the U.S. Army Reserve Personnel Command (AR-PERSCOM) 5 months after their divorce requesting former spouse designation for SBP purposes.  Their letters were followed up with a DD Form 2656 (Data for Payment of Retired Personnel).

	b.  The Defense Finance and Accounting Service (DFAS) denied SBP benefits to her.

3.  The applicant provides:

* DFAS letter, dated 16 June 2014
* DD Form 2656-7 (Verification for Survivor Annuity)
* FSM's death certificate
* marriage certificate
* record of dissolution of marriage
* her affidavit, dated 29 September 2014
* letters to AR-PERSCOM, dated October 2002
* DD Form 2656
* FSM's Retiree Account Statement
* FSM's DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Email correspondence
* affidavit from FSM's daughter
* photocopy of envelope from DFAS to the applicant

 CONSIDERATION OF EVIDENCE:

1.  The FSM was born on XX December 1944.

2.  Having prior active service in the U.S. Navy, the FSM enlisted in the U.S. Army Reserve (USAR) on 17 January 1973.

3.  The FSM married S____, the applicant, on 16 September 1983.  The record of marriage provided by the applicant shows her date of birth (DOB) as XX July 1952.

4.  The FSM's records contain a DD Form 1883 (SBP Election Certificate), dated 15 July 1993, showing he elected spouse-only coverage for the full base amount.

5.  The FSM was reassigned to the Retired Reserve effective 7 February 1994.

6.  The FSM and S____, the applicant, divorced on 3 May 2002.

7.  The applicant provided:

	a.  an unsigned letter to AR-PERSCOM, dated 24 October 2002, wherein the FSM requested to change his SBP coverage from spouse to former spouse; and

	b.  an unsigned letter to AR-PERSCOM, dated 24 October 2002, wherein the applicant made a deemed election to change the FSM's SBP election from spouse to former spouse coverage.

8.  The applicant provided the FSM's DD Form 2656, dated 17 May 2003, showing the FSM elected former spouse coverage.

9.  The applicant provided the FSM's Retiree Account Statement, dated 2 December 2006, showing the FSM paid SBP premiums for spouse-coverage.  The applicant's DOB is shown as the spouse's DOB on this statement.

10.  On an unknown date, the FSM married A____.

11.  The FSM died on 1 May 2014.  His death certificate shows he was married to A___.

12.  The applicant provided a DD Form 2656-7, dated 24 May 2014, showing she requested payment of former spouse SBP.

13.  The applicant provided a letter from DFAS, dated 16 June 2014, which states:

* she was not entitled to receive an annuity under SBP
* the FSM elected to cover her under SBP upon his retirement
* a spouse loses eligibility as a spouse beneficiary upon divorce
* retirees have the option to change their spouse coverage to former spouse coverage upon divorce, but the request from the retiree must be made within 1 year of the divorce
* the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage, but the deemed election must be received within 1 year of the divorce
* the FSM did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by the applicant

14.  The applicant provided an affidavit from the FSM's daughter, dated 20 September 2014, wherein she states:

* she is the daughter of the FSM
* she and her father discussed his wishes with respect to beneficiary designation on his military retirement account and life insurance policies upon his death on several occasions
* he told her he had elected his former spouse, the applicant, to receive the survivor annuity on his military retirement

15.  The applicant also provided a self-authored affidavit, dated 29 September 2014, wherein she states:

	a.  She and the FSM were married on 16 September 1983 and divorced on 2 May 2002.  A few months after their divorce, the FSM contacted her to let her know he desired to name her as his former spouse beneficiary on his military retirement account.  He prepared letters to AR-PERSCOM in October 2002.

	b.  They were separated for 3 years before they filed for divorce.  During those 3 years she continued to pay his medical, dental, visual, automobile, and life insurance premiums and other debts.  Naming her as the former spouse beneficiary on his retirement account was a way he could potentially repay her for the debts she paid off for him.

	c.  Before the FSM married A____ in June 2003, he told her that A____ knew she would be the sole former spouse beneficiary on his military retirement account and A____ would be his life insurance beneficiary.

	d.  The FSM provided her with a copy of the DD Form 2656, dated 17 May 2003, and his retiree account statement showing she was the beneficiary.

	e.  On more than one occasion between 2002 and 2013, she and the FSM confirmed with each other via email that he was named as the primary beneficiary on her 401K plan (pension account) and he had named her as the former spouse beneficiary on his military retirement plan.

	f.  The FSM's daughter told her within a few days after his death that the FSM told her the applicant was to receive his retirement annuity.

	g.  After the FSM's death, DFAS sent annuity forms to her, but addressed the envelope to her at the FSM's last address.  His widow forwarded the documents to her.  She had already mailed a DD Form 2656-7 to DFAS on 27 May 2014.  When she called DFAS to check the status of her claim, she was told to provide a form signed by the FSM naming her as the former spouse.  She could not locate such a form at that time, but has since found it.

	h.  DFAS denied her claim because there was no documentation on file indicating the FSM made a former spouse election for SBP.

16.  DFAS records indicate:

* no one is receiving the SBP annuity
* there is no information pertaining to A____
* the applicant was determined to be ineligible with no deemed election on file

17.  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.

18.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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

20.  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.

21.  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 contends she and the FSM sent letters to AR-PERSCOM 5 months after their divorce and she provided letters showing the FSM requested to change his SBP election from spouse to former spouse coverage and she made a deemed election to change the FSM's SBP election from spouse to former spouse coverage.  However, these letters were not signed by the FSM or applicant.

2.  The DD Form 2656 provided by the applicant showing the FSM requested former spouse coverage on 17 May 2003 was not executed within the statutory 1-year time limit.

3.  Her contentions were carefully considered.  However, SBP elections are made by category, not by name.  As long as she was the FSM's spouse, she was the eligible SBP beneficiary.  She was no longer the beneficiary once they divorced.

4.  DFAS records do not show the FSM requested changing his SBP election to former spouse coverage or that the applicant made a request for a deemed election within the statutory 1-year time limit.

5.  There is evidence showing the FSM remarried.  Upon the 1-year anniversary of their marriage, his current spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.

6.  While not at all unsympathetic to the applicant's position, the law relating to the SBP is clear regarding when and how former spouse coverage can be established.  It is equally clear with respect to how and at what point a new spouse gains eligibility as the surviving spouse.  In this case, former spouse coverage was never established; the initial election of spouse coverage remained in place.  The spouse portion of his original election was simply dormant from the time the couple divorced until his remarriage plus 12 months.  Divorce decree or not – equity or not – from that point forward the ABCMR lost the power to change the FSM's records in such a way as to divest A____ of her statutorily-recognized interest in the SBP and establish former spouse coverage for the applicant because such action would be a gross violation of A____'s due process rights.  Accordingly, the only avenues of relief available to the applicant are to prevail upon her former husband's widow to voluntarily relinquish her interest in a notarized statement or to seek to have a court divest A____ of her annuity in the course of litigation.  Only then, pursuant to a court order with A____ having had an opportunity to protect her property interest in the proceeding, could the ABCMR make a correction effectively stripping A____ of her entitlement to the SBP annuity.

7.  In view of the foregoing information, the evidence presented is insufficient to grant the applicant the relief requested.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.

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)                                         AR20140018015



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ABCMR Record of Proceedings (cont)                                         AR20140018015



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