BOARD DATE: 8 November 2012 DOCKET NUMBER: AR20120005834 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 the record of her deceased former spouse, a former service member (FSM), be corrected to show she is the beneficiary and entitled to receive the Survivor Benefit Plan (SBP) annuity based on his death. 2. The applicant states she was informed by the FSM that steps had been taken to ensure she would receive his SBP annuity agreed to in their divorce decree. 3. The applicant provides a copy of the divorce decree and birth certificate in support of her request. CONSIDERATION OF EVIDENCE: 1. On 15 March 1954, the FSM enlisted in the Regular Army, and on 6 April 1960, the applicant and FSM were married. 2. On 31 March 1974, the FSM was honorably retired, in the rank of staff sergeant/E-6. A DD Form 1883 (SBP Election) completed by the FSM on 1 March 1974, shows he elected SBP coverage for Spouse and Children at a reduced amount of $300.00. The form indicates the applicant, who was the FSM’s spouse at the time, concurred with this election. 3. On 12 February 1997, the applicant and FSM were divorced. The Decree of Divorce issued by the District Court of Carter County, State of Oklahoma stipulated the settlement agreement entered into by the applicant and FSM was ratified and confirmed by the court and was incorporated into the divorce decree. The settlement agreement stated, in pertinent part, that the applicant would receive and would be designated as beneficiary of the FSM's military SBP, payable upon the FSM's death. 4. On 20 February 2012, the FSM died at age 75. The death certificate shows his status as married and lists a current wife other than the applicant. 5. The DFAS record reflects the wife listed on the FSM's death certificate as spouse and shows an SBP election of Spouse Only. DFAS indicates the divorce decree from the 1974 marriage is not on file. 6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment. 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 1 year of the date of the court order or filing involved. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to correct the FSM's record to show her as the beneficiary of his SBP as stipulated in their divorce decree has been carefully considered. 2. By law, a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse may make such an election. However, if that person fails or refuses to make such an election within 1 year of the divorce, the former spouse concerned may make a written request that such an election be deemed to have been made. The 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. 3. There is no evidence of record and the applicant fails to provide any that shows the FSM elected former spouse SBP protection incident to their divorce, or that she requested a SBP deemed election within 1 year of her divorce from the FSM. Given the FSM was married at the time of his death and his SBP election remained Spouse Only, the FSM’s wife at the time of his death is the lawful beneficiary for his SBP. 4. Although the applicant has an equitable interest in the FSM's SBP, the Board may not divest the FSM’s widow of her legal interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM. This court action would have to include the FSM’s widow as a party in order to protect her property interest and rights. If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration. In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM’s widow renouncing her right to the SBP payment. 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) AR20120005834 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120005834 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1