IN THE CASE OF:  

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20140019370 


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, that the record of her former husband, a former service member (FSM), be corrected to show her as the “former spouse” beneficiary for the FSM's Survivor Benefit Plan (SBP) benefits.  

2.  The applicant states, in effect, that:

a. She has been denied SBP because the Defense Finance and Accounting
Service (DFAS) stated that no application had been submitted within a timely manner.  This is untrue; she thought she had done everything she needed to do but was not getting anywhere with DFAS.

b. There was no way that she could have known that an error occurred or 
when the error occurred, since proper application was made and documented by the Army at the time the FSM received his notification of eligibility (NOE). 

c. The mistake was not on her part; therefore, she could not make a deemed
election.

3.  The applicant provides:

* A DD Form 1883 (SBP Election Certificate) dated 12 December 1995
* A letter to the Santa Barbara County Superior Court dated 18 August 2000
* A letter from DFAS to Senator John McCain dated 25 September 2014
* Website article for SBP information
* Schedule of assets and debts
* ASA Dix Legal Brief for questions regarding the Uniform Services Former Spouses Protection Act

CONSIDERATION OF EVIDENCE:

1.  The FSM was married to J_____  A. Z______, the applicant, while the FSM was in the United States Army Reserve (USAR). 

2.  On 16 November 1995, the FSM received his notification of eligibility (NOE) for non-regular retired pay at age 60.  On 12 December 1995, he elected “spouse only” Reserve Component SBP (RCSBP) coverage at Option C (immediate coverage).

3.  On 28 August 2000, the FSM and his “former spouse” divorced.  

4.  The divorce decree is not available for review.  

5.  On 17 October 2001, prior to the FSM’s retirement, he submitted a DD Form 2656 (Data For Payment of Retired Personnel) that shows in:

* Section VIII (Dependency Information), item 22 (Spouse) – Not Applicable 
* Section VIII, item 25 (Dependent Children) - Not Applicable
* Section IX (SBP Election):

o Item 26a (Beneficiary Category(ies) – Do Not Have Dependent Child(ren)
o Item 26c – Do Not Have A Spouse
o Item 26g -  I Elect Not To Participate In SBP – Do Not have Eligible Dependents Under The Plan

6.  On 29 October 2001, the FSM retired from the USAR in the rank of sergeant first class (SFC)/E-7 at age 60.  He was single at this time.  There is no evidence that he elected "former spouse" RCSBP coverage or that the applicant had requested a deemed election for "former spouse" RCSBP coverage within one year of their divorce.
  
7.  The FSM married J_____ Q______ B_____ on 5 April 2002.  Within one year of their marriage, the FSM informed DFAS that he wanted full SBP coverage for the new spouse with an effective date of 5 April 2003.

8.  The FSM paid SBP full premiums for his “spouse” until his death on 
22 April 2013.

9.  Upon the FSM’s death both the “former spouse” and “spouse” applied for an SBP annuity with DFAS.  However, the “former spouse” was denied and the current “spouse” was approved to receive an SBP annuity.

10.  The available records do not show the FSM made an election to change his RCSBP election from “spouse” to “former spouse” within 1 year after their divorce or that the “former spouse” requested a deemed election former spouse coverage within that same period of time.

11.  On 8 December 2014, DFAS stated in a letter to the “former spouse” that a review of the FSM’s retired pay account reflects that he did not elect to participate in the SBP program for a “former spouse.”  

12.  There is no provision that makes “former spouse” coverage an automatic benefit.  The only means by which the divorced spouse can become an SBP beneficiary is if “former spouse” coverage is elected by the service member or a deemed election is made on the basis of a court order.  The request to deem an SBP election must be made within 1 year of the date of the original court order which awarded the coverage.  In order to update the FSM’s SBP account accurately, he or the “former spouse” needed to forward a copy of their complete final divorce decree with the judge's signature and the completed DD Form 2656-6 (SBP Election Change Certificate). 

13.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  It required that retiring members and spouses be informed of SBP options and effects.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

15.  Title 10, U. S. Code, Section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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.  Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option.

DISCUSSION AND CONCLUSIONS:

1.   The applicant’s request for correction of the FSM’s record to show a “former spouse” SBP election was made within 1 year of their divorce has been carefully considered.  

2.  The evidence of record confirms the FSM elected RCSBP spouse coverage upon receipt of his 20 year letter.  

3.  The FSM and applicant were divorced on 28 August 2000.

4.  There is no evidence the final divorce decree or attendant property settlement awarded SBP coverage or the FSM attempted to comply with the divorce decree by submitting a voluntary request to DFAS to have his SBP election changed from spouse to former spouse coverage.  Assuming SBP was awarded, it appears the applicant failed to request a deemed election within 1 year of their divorce at least in part as a result of unawareness with respect to the requirement.  

5.  Accordingly, the FSM’s previously elected spouse coverage went into a suspended status.  Evidence indicates the FSM remarried on 5 April 2002 and elected “spouse” SBP coverage within 1 year of his new marriage.  This election was superfluous but did serve to inform DFAS that his previously elected coverage was again active.

6.  As such, notwithstanding the divorce decree, assuming it awarded SBP, the Board may not divest the FSM's current spouse of her interest in the SBP without an order from a State court of competent jurisdiction or other document showing she knowingly and voluntarily relinquishes her right to the FSM's SBP.  That is, the Board cannot take the SBP from the FSM's current spouse without violating her constitutional right to due process of law.  Therefore, this court action would have to include the FSM's current spouse as a party in order to protect her rights.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to this Board for reconsideration.  In the alternative, the Board may reconsider the applicant's request if she obtains a notarized, sworn affidavit from the FSM's current spouse irrevocably renouncing her right to the FSM's SBP.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.

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)                                         AR20140007441



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ABCMR Record of Proceedings (cont)                                         AR20140019370



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