IN THE CASE OF:	

		BOARD DATE:	  13 October 2015

		DOCKET NUMBER:  AR20150002712 


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, the former spouse of a former service member (FSM), requests, in effect, that she be designated as the "former spouse" beneficiary of the FSM's Survivor Benefit Plan (SBP) annuity.   

2.  The applicant states:

* she and the FSM divorced on 14 December 2008; however, he did not retire until recently
* per their equitable distribution order, he was ordered to name her as the beneficiary of his SBP annuity
* the FSM never informed her that he retired
* recently, she was made aware that he had retired when she contacted the Defense Finance and Accounting Service (DFAS) about how to receive her half of his retired pay once he retired
* she was also informed at this time that she was not named as the beneficiary of the FSM's SBP annuity
* per her attorney, this lack of action put the FSM in contempt of court
* she is hoping the Army Board for Correction of Military Records (ABCMR) can correct this error, rather than her resorting to legal action

3.  The applicant provides:

* an email message from a Customer Service Representative at the Army Review Boards Agency (ARBA), dated 4 December 2014

* Judgment of Absolute Divorce, issued by the General Court of Justice, District Court Division, Cumberland County, North Carolina on                 17 December 2008 
* Equitable Distribution Order, issued by the General Court of Justice, District Court Division, Cumberland County, North Carolina on                 24 February 2009 

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 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 applicant and the FSM were married on 17 June 1988. 

3.  The FSM had prior enlisted service in the Regular Army and U.S. Army Reserve, followed by commissioned service as a Reserve warrant officer of the U.S. Army Reserve.  He was appointed as a Reserve commissioned officer of the Army on 20 February 2003, as a second lieutenant in the chemical corps.  He entered active duty for service in the Regular Army on 20 February 2003.

4.  The FSM was promoted to first lieutenant on 20 August 2004 and to captain on 1 April 2006.

5.  The FSM's official military personnel file (OMPF) contains a DD Form 93 (Record of Emergency Data), dated 21 April 2008, which identifies the applicant as his spouse, and an SGLV Form 8286 (E) (Servicemembers' Group Life Insurance Election and Certificate), also dated 21 April 2008, which lists another woman, identified by the initials "NLL" as the principle beneficiary for his life insurance.

6.  The applicant and the FSM were divorced on 17 December 2008.  Their Equitable Distribution Order, issued by the General Court of Justice, District Court Division, Cumberland County, North Carolina on 24 February 2009, contains language that directed the FSM to elect participation in the SBP and to list the applicant as his SBP beneficiary.  

7.  The FSM's OMPF contains:

   a.  an SGLV Form 8286, dated 8 May 2009, which lists his spouse, identified by the initials "NL" as the principle beneficiary for his life insurance.
   
   b.  a DD Form 93, dated 16 December 2009, which identifies his spouse by the initials "NLL." 
   
   c.  a DD Form 93, dated 23 May 2012, which identifies his spouse by the first and middle initials "NL," and shows she adopted the FSM's surname as her last name, thereby changing her initials to "NLS."
   
   d.  a DD Form 93, dated 3 August 2012, which identifies his spouse by the initials "NLS." 
   
   e.  an SGLV Form 8286, dated 12 June 2013, which lists his spouse, identified by the initials "NLS" as one of the principle beneficiaries for his life insurance.

8.  The FSM was honorably retired on 31 August 2013, after completing            25 years, 2 months, and 24 days of total active service.

9.  The FSM's OMPF is void of any documentation that shows he elected to participate in the SBP during his separation processing.

10.  The applicant provides an email message from a Customer Service Representative at ARBA, dated 4 December 2014, in response to an inquiry she made on 27 October 2014.  

* in her inquiry, she contends she was informed by DFAS that the FSM elected to provide an SBP annuity to his current spouse
* upon request by this agency, DFAS officials did not provide any documentation or information that proves the FSM enrolled in the SBP
* DFAS provided no indication that the applicant had submitted a request for a deemed SBP election within 1 year of the FSM's divorce

11.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  Elections are made by category, not by name (emphasis added).

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.
13.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members, including Reservists.

14.  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.

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit (emphasis added).  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the records of her former spouse, a retired FSM, should be corrected to show he elected to participate in the SBP when he retired, and he listed the applicant as the "former spouse" SBP beneficiary at that time, in accordance with their Equitable Distribution Order.  

2.  The evidence of record shows the applicant and the FSM were married on   17 June 1988 and divorced on 17 December 2008.  Their Equitable Distribution Order contains language that directed the FSM to participate in the SBP and to list the applicant as his SBP beneficiary.  

3.  The evidence of record does not show that the applicant submitted a request for a deemed SBP election within 1 year of the date of her divorce from the FSM.

4.  Since SBP elections are made by category, not by name, once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  The FSM remarried at some point prior to 8 May 2009; therefore, at that point, regardless of the Equitable Distribution Order, the FSM's current wife became his automatic SBP beneficiary. 

5.  The ABCMR may not correct the FSM's records to effectively change his election to former spouse, for so doing would deprive his current spouse of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed and notarized declaration from the FSM's current spouse, renouncing any interest in the SBP annuity or a court order divesting her of her interest, effective while the FSM is still alive.

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)                                         AR20090013464



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002712



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1