IN THE CASE OF:
BOARD DATE: 28 July 2015
DOCKET NUMBER: AR20140019566
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 that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states, in effect, that the divorce decree agreed to by her and the FSM clearly stated that she was to receive 50% of his military retired or retainer pay as an annuity for her lifetime. However, when she applied to the Defense Finance and Accounting Service (DFAS) her claim was denied because the divorce decree did not specify she was to be the beneficiary of the FSMs SBP and because he did not make a former spouse election.
3. The applicant provides copies of her divorce decree, a letter from DFAS and the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was serving as a colonel in the Iowa Army National Guard when he was transferred to the U.S. Army Control Group (Retired) due to completion of maximum years of service on 31 May 1985.
2. On 2 April 1987, the applicant and the FSM were divorced in Boone County, Iowa. The divorce decree provides, in pertinent part, that the FSM would designate the applicant as the survivor of his military disposable retired or retainer pay and Civil Service annuity to the extent that she receives 50% of each of those benefits. The divorce decree does not address the SBP.
3. The FSM made his SBP election of full spouse only coverage on 19 January 1990. His spouses first name at that time was Loretta. He was placed on the AUS Retired List effective 8 April 1990.
4. The FSM died on 15 April 2014 and he was survived by his wife Loretha.
5. On 2 June 2014, the DFAS dispatched a letter to the applicant informing her that because the divorce decree did not award her SBP benefits as a former spouse, the DFAS could not approve her application for benefits.
6. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
7. 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. 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. 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 one year of the date of the court order or filing involved.
8. SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members. As a Federal Government insurance program, mainly subsidized by participant premiums, it is strictly governed by Federal statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries. Retirees do not earn SBP through their service they earn the right to participate in SBP. As with any private insurance endeavor, it is incumbent upon individuals to timely apply to participate.
9. Public Law 92-425, the SBP, enacted 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. Elections are made by category, not by name.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. However, SBP elections are made by category, not by name. There is no evidence to show that the FSM or the applicant ever made a former spouse election.
2. It is also noted that the FSM was married to another spouse at the time he made his SBP election and she survived the FSM. Accordingly, it appears that she is the only authorized beneficiary of his SBP annuity under the law.
3. The divorce decree contains language indicating that both parties agreed that the applicant should remain the survivor beneficiary of the FSMs military disposable retired or retainer pay and civil service annuity. Although it does not cite SBP by name, it does fairly encompass SBP. However, the FSMs widow attained a vested interest by statute and cannot be deprived of that interest without due process.
4. Regrettably, absent a voluntary relinquishment of her SBP interest by the FSMs widow or a court order to which the widow was a party terminating her interest in favor of the applicant, there is insufficient basis for granting relief in this case.
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) AR20140019566
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ABCMR Record of Proceedings (cont) AR20140019566
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