IN THE CASE OF: BOARD DATE: 14 July 2011 DOCKET NUMBER: AR20100026841 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 spouse, a former service member (FSM), be corrected to show his Survivor Benefit Plan (SBP) beneficiary was changed from current spouse to former spouse. 2. The applicant, the former spouse, states that the divorce agreement between her and the FSM clearly states that she was supposed to get the SBP benefit. She was not advised that she needed to complete any paperwork. 3. The applicant provides copies of the divorce decree and the FSM's death certificate. CONSIDERATION OF EVIDENCE: 1. The FSM was an Army Reserve major. On 15 March 1977 he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he elected reduced spouse only SBP coverage and named the applicant as his spouse. He retired from active duty due to length of service on 31 March 1977. 2. The 1987 divorce decree provided that the FSM agreed to obtain and keep in effect the SBP for the benefit of the applicant. The FSM died in October 2010. 3. The Defense Finance and Accounting Service (DFAS) advised, on 10 March 2011, that the current spouse is listed as the SBP beneficiary but that no payment had been made to her because of an unreconciled debt in the account. 4. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 5. 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. 6. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 7. 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. 8. 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 one 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. 9. 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 one year of the date of the court order or filing involved. DISCUSSION AND CONCLUSIONS: 1. The current designation of the current spouse precludes the possibility of favorable consideration of the applicant's request. 2. By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election. The law also provides that, within 1 year of the divorce, a former spouse may request that a “Former Spouse” SBP coverage election be deemed to have been made. 3. Although the divorce decree required the FSM to continue SBP protection for the applicant, the law provided for her to make a deemed election if he failed to do so. They both failed to do so. 4. SBP coverage is now vested in the FSM's widow. Her interest in the SBP cannot be divested without due process. 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 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) AR20100026841 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100026841 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1