IN THE CASE OF:	  

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020113


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 survivor benefit plan (SBP) coverage from "spouse" to "former spouse" (FS) within 1 year of their divorce and payment of the SBP annuity based on his death.  

2.  The applicant states, in effect:

   a.  She (S____ W. Z______) was the FS of the FSM who was married to him for 44 years.  They divorced in 2001, 11 years after the FSM retired in 1989/1990.
   
   b.  As a full time home maker with minimal work experience, raising three children from 1958 throughout three tours in Vietnam and one in Korea, she and the FSM took steps to highlight SBP in their divorce decree, and he remained committed to making the premium payments required by the divorce decree.
   
   c.  They both understood that referencing the SBP in their divorce decree would maintain her benefits and all appropriate document sharing would be provided by the law office.
   
   d.  Just over 1 year after their divorce, the FSM married another woman from Uzbekistan.  They were married just over 10 years until his death in January 2014.

   e.  The FS never remarried.  Just prior to the FSM's passing in 2014, and with help from their daughter, she discovered that the divorce decree was never received by DFAS and that she was still indicated as the FSM's "spouse" vice FS.
   
   f.  The FS immediately elected FS SBP coverage and provided DFAS with the divorce decree, along with all other required documents.  The FSM passed away the day after all of the documentation was received by DFAS.
   
   g.  The FS received a denial letter from DFAS for an SBP annuity due to the divorce decree and change in status from "spouse" to FS not being received within 1 year of their divorce.
   
   h.  The FS is now 75 years old and always understood that when the FSM passed and alimony ceased, the SBP annuity would take over.
   
   i.  It is confusing to learn that due to a technicality (missing the submission deadline) all is denied.
   
   j.  She is in her declining years and has recently moved out of an assisted living facility and was relying upon the SBP annuity for her future living arrangements.

3.  The applicant provides:

* General Power of Attorney held by her daughter
* A self-authored letter
* A letter from her daughter
* Her military dependent identification card
* A DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for FS coverage)
* A DD Form 2656-7 (Verification for Survivor Annuity)
* A DA Form 4240 (Data or Payment of Retired Army Personnel)
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Forms 215 (Correction to DD Form 214)
* A California Marriage Index
* Defense Finance and Accounting Service (DFAS) letter
* Divorce decree and separation agreement
* FSM's Certificate of Death




CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 26 December 1936.  He and the applicant were married on 17 August 1957.

2.  The FSM's records show he enlisted in the Regular Army on 
3 December 1957.  He served in a variety of assignments and he attained the rank/grade of colonel (COL)/O-6.

3.  On 30 June 1989, the FSM was honorably retired.  Before his retirement, he declined SBP coverage for spouse or children with spousal concurrence.  However, he was immediately recalled to active duty for 1 year.  

4.  On 2 May 1990, the FSM made another election for SBP coverage for "spouse" coverage at a reduced amount of $1000.00 with spousal concurrence.  However, he was apparently enrolled in SBP at full base amount due to DFAS never receiving the original declination of coverage.

5.  On 4 September 1990, the FSM was honorably discharged from active duty and placed on the Retired List in his retired rank/grade of COL/O-6.  He completed 32 years, 9 months, and 2 days of creditable active duty service.  

6.  On 19 September 2001, the FSM and his spouse divorced.  In the divorce decree he was required to provide SBP coverage for his FS.  However, she never requested a deemed election within 1 year and he never made the change to correct his SBP coverage from "spouse" to FS.  Therefore, he remained in the SBP under "spouse" category of coverage.

7.  Shortly thereafter, the FSM marrried F______ Z______ Z_____.  He remained in SBP "spouse" category of coverage and continued to pay SBP premiums at the full base amount.

8.  On 18 January 2014, the FSM died.  His death certificate shows he was married to F_____ Z_____ Z_______ at the time of death.

9.  The applicant's applied to DFAS for an SBP annuity; however, on 
22 February 2014, DFAS responded to her request denying an SBP annuity due to the FSM never making a valid request to change his SBP coverage from "spouse" to FS, nor did the she deem her election from "spouse" to FS within 1 year of their divorce as required by law.  

10.  In 2014, the applicant provided various documents showing that she should have been deemed as the FS for SBP coverage pursuant to their divorce decree and that DFAS denied her claim as the valid annuitant. 

11.  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.

12.  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.

13.  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.

14.  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.

15.  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.

16.  Title 10, U.S. Code, section 1447(7) defines the term "widow" as the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least one year immediately before his death or is the mother of issue by that marriage.
Title 10, U.S. Code, section 1447(9) defines the term "surviving spouse" as a widow or widower.



DISCUSSION AND CONCLUSIONS:

1.  The FSM and applicant were married on 17 August 1957.  When the FSM retired in 1989, he declined SBP coverage for "spouse and children" with spousal concurrence.  However, in 1990, after he was recalled to active duty, he changed his SBP coverage from a declination to "spouse" coverage at a reduced amount.

2.  On 19 September 2001, the FSM and S____ W. Z_______ divorced.  Although their divorce decree stipulated that he would maintain an SBP annuity for the FS, neither the FS nor the FSM notified DFAS of their divorce or provided a written request to change the election from "spouse" to FS within 1 year.  

3.  Shortly after his divorce, the FSM married F_____ Z_____ Z_____.  Therefore, his new spouse became the SBP annuitant upon his death.

4.  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 a FS an automatic beneficiary.  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.  

5.  A former spouse may request a deemed 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.

6.  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.  

7.  Unfortunately, the change the applicant has requested, if granted, would necessarily adversely impact the FSM's widow's (F_____ Z_____ Z_____'s) entitlement to survivor benefits and cause her to lose benefits to which she is entitled under the statute as the FSM's surviving spouse.  

8.  Moreover, as a practical matter, this Board is ill equipped to adjudicate such a dispute between two competing beneficiaries for the same benefit.  There are no Board procedures to provide third parties (such as F_____ Z______ Z____) with notice and other basic due process rights that must be afforded before the Government removes an entitlement.  Additionally, the Board does not have subpoena power or discovery rules which normally are invoked to aid in resolving disputes between competing beneficiaries.  Those safeguards are available in the civil courts, but not at this Board.  

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)                                         AR20140020113



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