IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140019123 


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, in effect, correction of the records of her deceased former husband, a former service member (FSM), to show he changed his SBP coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death.  She also request his records be corrected to show that she is entitled to medical and dental care.

2.  The applicant states:

* she and the FSM were married for 7 years and she took care of his uniforms, boots, meals, and other functions
* she came from South Korea and she was not familiar with the American culture; the FSM made things more difficult by hiding things from her 
* he was an abusive husband and did not take care of her; she did not fully understand financial issues like check books, alimony, and child support
* she feels she was not informed and if she had been, she would have known of some of the benefits she was eligible for 
* after her divorce, she raised the children by herself; she raised Paul and Michelle (who changed her name to Wednesday) [he also had a child, Julie Ann from a previous spouse]
* she continued to struggle as she continued to learn and adapt to life in a new country, especially since her son Paul is disabled 
* after the FSM's death, she learned that he cancelled his life insurance a month before he passed away and left nothing for the children
* she also learned that the debt he owed was transferred to her after his death; no one told her of that and it took several months to pay the debt 
3.  The applicant provides:

* Report and Certificate of Marriage 
* Divorce decree
* FSM's Certificate of Death
* Applicant's name change
* Child's name change
* Letter of Guardianship
* Physician Certificate for Child Annuitant 
* Loan bills 

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.  The FSM's records show he was born in September 1946.  He and Yang Suk were married on an unknown date (marriage certificate is not available) and divorced on 24 January 1988 (divorce decree is not available).  It appears they had one child, Michelle Ann, who was born on 31 December 1983.

3.  The FSM's records show he enlisted in the Regular Army on 30 October 1974 and he held a personnel military occupational specialty.  He served in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8. 

4.  The FSM and applicant, SoYoung, were married on 10 August 1988.  

5.  On 31 August 1995, in anticipation of his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel), which shows he: 

* was married to SoYoung and they had three dependent children, Julie Ann (from a previous spouse, born on 31 December 1983), Michelle (born on 14 July 1989), and Paul (born on 14 March 1992)
* designated his spouse, SoYoung, as the beneficiary of his unpaid retired pay (arrears of pay)
* elected "spouse and children" SBP coverage based on the full amount 

6.  The FSM retired on 31 October 1995 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 November 1995. 

7.  The FSM's Retiree Account Statement for 2 January 1996 shows he paid an SBP premium of $92.99.  The SBP category is not indicated. 

8.  On 13 November 1995, the FSM and applicant were divorced.  Their divorce decree is silent with respect to the SBP.  

9.  On 26 January 1996, by letter, the FSM requested the Defense Finance and Accounting Service (DFAS) remove his spouse SoYoung from his SBP but keep the children.  The FSM also attached a copy of his divorce decree.  

10.  There is no indication the FSM submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.  Likewise, there is no indication the applicant, now the FSM's former spouse, deemed the SBP election within 1 year of her divorce.

11.  On 29 April 2010, the FSM died.  His death certificate shows he was divorced at the time of death.  The informant is listed as his daughter Julie Ann.

12.  On 10 August 2010, by letter, DFAS informed Michelle (the FSM's daughter, now known as Wednesday) that no documents were received in reply to the letter that DFAS mailed them 3 months earlier referring to the FSM's retired account.  She was urged to fill out the enclosed form (DD Form 2656-7 (Verification for Survivor Annuity)) and attach a copy of the death certificate. 

13.  On 13 August 2010, it appears the FSM's and applicant's son Paul submitted a DD Form 2656-7 (Verification for Survivor Annuity) to DFAS.  This form listed Paul as the claimant and identified him as claiming the SBP benefit.  It also indicated he was not married and he was 18 years of age or older and a full-time student.  With this form, Paul submitted a W-4P (Withholding Certificate for Pension or Annuity Payment), direct deposit form, and a void check. 

14.  The applicant provides: 

	a.  A name change, dated 14 August 1995, approving her name to be changed to SoYoung Natalie. 

	b.  A name change, dated 16 October 2008, approving the FSM's daughter's name change from Michelle to Wednesday. 

	c.  A Letter of Guardianship from a State court, dated 14 October 2013.  The court appointed an individual with the name "Annabelle Lee" to be guardian of Paul (the FSM's child) as an incapacitated child. 

	d.  DD Form 2828 (Physician Certificate for Child Annuitant), dated 24 June 2014, certifying that Paul (the FSM's child) is permanently incapable of self-support or handling financial matters due to a permanent disability that began on 14 March 1992 (the date he was born). 

	e.  Loan documents and a breakdown of payments. 

15.  On 5 December 2014, by letter to Wednesday (the FSM's daughter, previously known as Michelle), DFAS stated that her claim for arrears of pay was received but it was incomplete.  DFAS required the Standard Form 1174 (Claim for Unpaid Compensation) to be completed and signed and the submission of the FSM's death certificate.  

16.  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.

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

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

19.  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.

20.  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.

21.  Title 10, U. S. Code, section 1447(11) defines "dependent child" as a person who is (1) unmarried; and (2) who is under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday or incurred on or after the 18th birthday but before the 22d birthday while pursuing a full time course of study or training; and (3), who is the child of a person to whom the Plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.

DISCUSSION AND CONCLUSIONS:

1.  The FSM and applicant were married on 10 August 1988.  When the FSM retired, he elected "spouse and children" SBP coverage.  He and the applicant were divorced on 13 November 1995.  Their divorce decree did not stipulate that he would maintain an SBP annuity for the former spouse.  In fact, after his divorce, he notified DFAS of their divorce and asked to remove her from the SBP.  

2.  Because SBP elections are by category, not by name, a spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced she was no longer his spouse and no longer an eligible SBP beneficiary.  

3.  A former spouse may deem an SBP election.  There are two requirements for a deemed election to be valid.  The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP.  The second is that the request for a deemed former spouse election must be received within 1 year of the divorce.

4.  For example, when the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage.  The request for a deemed former spouse election must be received within 1 year of the divorce.  A divorce decree alone does not constitute a deemed election.  This is not applicable in the applicant's case because there is no agreement between the applicant and FSM and the divorce decree did not obligate him to cover her as a former spouse.  

5.  In view of the circumstances of this case, regrettably, the applicant is not entitled to the requested relief. 

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)                                         AR20140019123



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ABCMR Record of Proceedings (cont)                                         AR20140019123



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