IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140018296 


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:

The applicant defers requests and statements to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for reinstatement of her beneficiary status under the Survivor Benefit Plan (SBP) that was granted to her by her late husband, a former service member (FSM), in their divorce decree.

2.  Counsel states they were able to obtain an Order for Joinder (the joining of two or more legal issues together to be heard in one hearing/trial) and an order declaring Hannelore [the applicant] as the rightful beneficiary of the FSM's SBP annuity as of the date of the FSM's death.  These orders were obtained in Cumberland County, North Carolina's District Court, with proper notice and service as set forth in the North Carolina Rules of Civil Procedure.  It is noted that this was the original court in which the applicant was awarded SBP coverage in 2003 as a result of the parties' claim of equitable distribution.  They believe that this satisfies the Board's requirement to grant the applicant's request for former spouse SBP coverage.  

3.  Counsel provides copies of the following:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Equitable Distribution Order
* Decree of Dissolution of Marriage
* DD Form 2656-7 (Verification for Survivor Annuity)
* FSM's Death Certificate
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings
* Order for Joinder
* Certificate of Service 
* Summary Judgment Ruling

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120006992 on 18 October 2012.

2.  Counsel provides copies of documentation previously considered by the Board and an Order of Joinder, Certificate of Service, and Summary Judgment Ruling.  This is new evidence that will be considered by the Board.

3.  The FSM and Hannelore [the applicant] were married on 22 June 1972.

4.  The FSM was appointed in the U.S. Army Reserve on 29 September 1989, with prior Regular Army enlisted service.  He entered active duty on the same date.  

5.  On 29 June 1993, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated he was married to Hannelore [the applicant] and elected spouse and dependent children SBP coverage based on the full amount.

6.  He was retired for length of service on 30 June 1993 and was placed on the Retired List, effective 1 July 1993.  

7.  An Equitable Distribution Order, State of North Carolina District Court, dated 25 April 2002, shows the FSM and applicant entered into an equitable distribution of marital property and assets.  The order stipulated the FSM was to maintain the SBP and ensure Hannelore [the applicant] was listed as the beneficiary.

8.  A Decree of Dissolution of Marriage, Superior Court of the State of Arizona, shows the FSM and applicant were divorced on 7 December 2006.  The decree stated in paragraph B that an Equitable Distribution Order from the North Carolina Court was attached.  The parties agreed that Agreement was equitable and requested the Court approve same as the Property Settlement Agreement of the parties.  That Agreement shall be incorporated by reference into the Decree of Divorce, but that Agreement shall not be merged with the Decree, and shall retain its status as a contract separately enforceable from the Decree.  However, the Agreement shall be enforceable with or without its approval by the Court.

9.  There is no evidence the FSM notified the Defense Finance and Accounting Service (DFAS) within 1 year of the divorce or changed the SBP coverage from spouse to former spouse coverage.  Additionally, there is no indication the applicant notified DFAS within 1 year of her divorce or sought a deemed election. 

10.  The FSM died on 20 November 2011.  His death certificate indicates he was married to Elisabeth (date unknown).  

11.  On 6 January 2012, the applicant completed a DD Form 2656-7 for an SBP annuity as a former spouse.

12.  On 18 October 2012, in response to the applicant's request for reinstatement of her beneficiary status under the SBP that was granted in her divorce decree, the ABCMR concluded the Board would only be empowered to correct the FSM's records to grant the applicant an SBP annuity under one of two circumstances:

* The FSM's current spouse, Elisabeth, executed a signed notarized affidavit voluntarily relinquishing her rights to the SBP annuity in favor of the applicant
* The applicant obtained an order from a State Court of competent jurisdiction, in an action joining the FSM's current spouse, Elisabeth, as a party, declaring that Hannelore was the rightful beneficiary of the FSM's SBP annuity as of the date of his death

13.  An Order for Joinder, State of North Carolina District Court, dated 9 June 2014, stated the following facts:

   a.  Elisabeth was properly served with the applicant's Motion for Joinder.

   b.  Elisabeth was not an original party to the case, as she married the FSM after his divorce from the applicant.

   c.  Elisabeth had an interest in the SBP annuity that was awarded to the applicant.
   
   d.  In order for the court-awarded SBP payments to be effectuated to Hannelore, she must have either:  a notarized affidavit from Elisabeth relinquishing her rights to the benefits in favor of Hannelore, or an order declaring that Hannelore was the rightful beneficiary of the benefit.  The Board required that Elisabeth be joined as party before said order was entered.

   e.  Elisabeth had failed to provide an affidavit relinquishing her rights; therefore, an order must be ordered that declared Hannelore was the rightful beneficiary. 

   f.  Before said order could be entered, Elisabeth must be joined as a party due to her interest in the benefit and that a complete determination could not be made without her presence.
   
   g.  The court ordered, adjudged, and decreed that Elisabeth was hereby joined as a third-party defendant in that matter.

14.  A Certificate of Service, State of North Carolina District Court, certified Elisabeth was delivered a copy of the foregoing Order for Joinder on 9 June 2014.

15.  A Summary Judgment Ruling, State of North Carolina District Court, shows it was determined on 2 October 2014 that Hannelore [the applicant] was entitled to judgment as requested in her motion, as a matter of law, and she was the rightful beneficiary of the SBP annuity of the FSM as of the date of his death.

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

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

18.  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 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.  On 9 June 2014, the State of North Carolina District Court, ordered, adjudged, and decreed that Elisabeth was hereby joined as a third-party defendant in the matter of Hannelore versus the FSM.  On the same date, an Order of Joinder was delivered to Elisabeth.

2.  On 2 October 2014, the State of North Carolina District Court determined that the applicant was entitled to judgment as requested in her motion, as a matter of law, and she was the rightful beneficiary of the SBP annuity of the FSM as of the date of his death.

3.  In view of the foregoing, the FSM's records should be corrected as recommended below:

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM changed his SBP election from "spouse" to "former spouse" coverage on 8 December 2006, his request was timely received and processed by the appropriate DFAS office, and paying Hannelore [the applicant] an SBP annuity retroactive to the day after the FSM's death on 20 November 2011.



      _______ _   _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)                                         AR20140018296



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ABCMR Record of Proceedings (cont)                                         AR20140018296



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