RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           8 January 2004              
	DOCKET NUMBER:   AR2003091004

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Barker		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that the Survivor Benefit Plan (SBP) election made by her deceased ex-spouse, a former service member (FSM), be changed to former spouse coverage.

2.  The applicant states, in effect, that at the time of the FSM’s death his SBP election was his current spouse; however, her divorce decree granted her entitlement to SBP and forbade any subsequent changes.  

3.  The applicant provides a copy of the FSM’s death certificate, their marriage certificate, and their divorce decree in support of her application.  

CONSIDERATION OF EVIDENCE: 

1.  On 31 December 1990, the FSM was released from active duty for the purpose of retirement after completing 20 years, 2 months, and 10 days of active military service.  At the time, he held the rank and pay grade of sergeant first class/E-7 and he was placed on the Retired List in that rank and pay grade on 
1 January 1991.  

2.  During his retirement processing, the FSM completed a Data for Payment of Retired Army Personnel (DA Form 4240).  In Part II (SBP Election) of this form, he elected spouse and dependent children full coverage.  

3.  The applicant and FSM were divorced on 29 July 1998.  The division of marital property portion of the divorce decree stipulated that the applicant should be named beneficiary under the Uniform Services SBP and that the FSM’s election to provide SBP benefits to the applicant should be continued in full force and should not be altered or withdrawn by the FSM during his lifetime.  It further stated that the FSM should immediately designate the applicant, his former spouse, beneficiary under the SBP and the applicant would continue to remain beneficiary as former spouse under that plan.  The FSM was further ordered to immediately obtain, fully complete, sign, and return to the Army all SBP election documents, papers, and forms necessary to provide SBP benefits to the applicant as his former spouse and simultaneously provide the applicant copies of those documents, papers, and forms.  It finally ordered that the applicant not modify, amend, withdraw, or in any other manner alter the election to name the applicant beneficiary of the SBP.  

4.  The record shows that neither the FSM nor the applicant took any action to request a change to the FSM’s SBP election to former spouse coverage within a year of the divorce decree being issued, as is required by law.  

5.  The FSM’s spouse SBP election remained in effect and on 15 October 1998, he remarried.  He died on 25 Janaury 2003.  His spouse at the time of his death is receiving the FSM’s SBP benefit based on the SBP election in force at the time of the FSM’s death.  

6.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that an injustice has occurred in this case; however, no Board corrective action will be taken because that action would cause another injustice by depriving the FSM’s spouse of property interest without due process. 

2.  The evidence of record confirms that the SBP election in force at the time of the FSM’s death was spouse coverage, and based on this election his wife at the time of his death is now receiving the SBP benefit.  

3.  The record shows that the FSM failed to make a former spouse coverage SBP election as was ordered by the applicant’s divorce decree.  As a result, the law allowed the applicant one year to submit a written request that a former spouse coverage election be deemed to have been made.  However, there is no evidence to show the applicant ever submitted such a request within the time prescribed, although she should have known that the FSM had not taken steps to comply with the court’s order.  

4.  The legal staff and Board has determined that the law prohibits granting the applicant’s requested relief at this time and absent the consent of the current spouse to change the FSM’s SBP election to former spouse coverage in lieu of spouse coverage, granting the requested relief is not possible in this case.  The applicant’s only recourse at this time is to return to the courts for resolution.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_KAN___  __LB___  __JM____  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.

		_Kathleen A. Newman
		     CHAIRPERSON

INDEX

CASE ID	AR2003091004	
SUFFIX		
RECON		
DATE BOARDED	2004/01/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/12/31	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  346	137.0000	
2.		
3.		
4.		
5.		
6.