IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150014167 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150014167 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. IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150014167 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 deceased former service member (FSM), requests, in effect, correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse and payment of the SBP annuity based on his death. 2. The applicant states she does not know the exact date of the FSM's retirement. However, upon their divorce in September 1985, the FSM elected to include in the Community Property Settlement to award her the SBP. Payment was taken in November 1985. The FSM then decided it was too costly and canceled the SBP in December 1985. A copy of the divorce decree was furnished to the Former Spouse Section located in Indianapolis, IN, at that time in compliance with Army regulations. However, although the paragraph located on the bottom of page 4 of the divorce decree awarding the SBP at that time was included in the decree as directed by regulation, the Former Spouse Section allowed the FSM to cancel the SBP. After almost two years of attempting to correct this error, she was told there was nothing that could be done. The regulation governing the SBP was changed about two years later. At that time, she was not contacted and/or informed that she could submit a form to reinstate the SBP. The FSM remarried a year or so after their divorce, and he elected to give the SBP to his current spouse. She just found this out. The FSM passed away on 8 August 2015. In summary, she was awarded the SBP in accordance with the guidelines of the regulation that was in effect at that time. She was informed about two weeks ago that was illegal and should not have happened. She asks that the Board correct this flagrant error and award the SBP to her. 3. The applicant provides: * marriage certificates * FSM's death certificate * divorce decree * Motion to Enforce Order CONSIDERATION OF EVIDENCE: 1. The FSM was born in August 1936. He and Nancy, the applicant, were married on 21 August 1956. 2. Having had prior service, the FSM reenlisted in the Regular Army on 11 November 1961. He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8. 3. On 17 October 1977, in preparation for his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated he was married to Nancy, the applicant, and they had three sons and a daughter, born in March 1957, February 1958, September 1959, and April 1962, respectively. He elected to participate in the SBP, spouse and children coverage, based on the reduced amount of $300. The applicant was mailed a letter on 17 October 1977 explaining this election to her and asking for her acknowledgment. 4. The FSM was honorably retired on 31 October 1977 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 November 1977. 5. On 16 September 1985, the FSM and applicant were divorced. Their divorce decree stipulated that the applicant would receive 50 percent of his retired pay. Additionally, it stated on page 4: * the FSM has filed an election to provide the SBP to the applicant to be payable upon his death * such SBP benefit would be continued and maintained in full force and effect and that it should not be altered or withdrawn by the FSM * the FSM is ordered not to revoke, modify, amend, withdraw, or alter his election to provide the SBP to the applicant 6. There is no indication the FSM submitted a change of his SBP coverage from "spouse and children" coverage to "former spouse" coverage. Likewise, there is no indication the applicant requested a deemed election to change the FSM's SBP coverage to "former spouse" within 1 year of the date of their divorce. 7. It appears that the FSM allowed the SBP to discontinue in December 1985 (reference page 3 of the Motion to Enforce Order by Contempt and to Modify and Notice of Hearing). 8. On 22 November 1988, the District Court, 225th Judicial District, Baxter County, TX, issued a Motion to Enforce Order by Contempt and to Modify and Notice of Hearing. This document shows the applicant requested the court to enforce the prior order. ''It is, therefore , ORDERED AND DECREED that [FSM] shall not, during his life time, revoke , modify, amend, withdraw, or in any other form alter the election to provide the Survivor Benefit Package for the benefit of [Applicant], which presently would pay to her on the death of [FSM] the survivor benefits, and [FSM] is hereby permanently ENJOINED and RESTRAINED from revoking, withdrawing, amending, or in any other way modifying or altering such benefit package election 9. On 6 July 2002, the applicant remarried. 10. On 8 July 2015, the FSM died. His death certificate shows he was married to Loretta at the time of his death. His date of marriage to Loretta is unknown. REFERENCES: 1. 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. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. 3. 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. 4. 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. 5. 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: 1. The applicant and the FSM were married on 21 August 1956. He retired in November 1977. At the time, he elected spouse and children SBP coverage based on a reduced amount. They were divorced on 16 September 1985. Their divorce decree awarded her 50 percent of his retired pay and stated he would maintain the SBP for her. 2. It appears the FSM discontinued payment of SBP premiums and/or suspended coverage in December 1985. As a result, the applicant filed a motion with the court to enforce the stipulations of their divorce decree, particularly the portion of his retired pay and the SBP coverage. Even though the court ordered him to enforce the divorce decree, the FSM did not change his SBP election to former spouse nor did the applicant request a deemed election for former spouse coverage within 1 year of the divorce. Additionally, according to the FSM's death certificate, the FSM was married to someone else at the time he died. 4. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. 5. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. 6. SBP elections are made by category, not by name. Additionally, the FSM remarried. Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse (now widow), not his former spouse, if they have been married for at least 1 year. 7. Notwithstanding the applicant's sincerity, the Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law. The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current widow was a party, divesting the current spouse of her interest in the SBP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014167 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2