BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150018986 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 . BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150018986 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. BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150018986 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, correction of the FSM's record to show he was court ordered to provide a portion of his Survivor Benefit Plan (SBP) annuity to the former spouse upon his death. 2. The applicant states, in effect, the beneficiary of the FSM's SBP is not entitled to it, since the basis of marriage was not legal and she has a senior lien against it. Her divorce decree recognized an "irrevocable lien attached to the Respondent's [SBP] in the amount of $600 per month." The applicant further states: a. The Inspector General (IG) investigation confirmed that he had committed bigamy and he was allowed to retire. b. Her attorney died without informing her about the need to deem the SBP election. She has clean hands, since the FSM assured their daughter and her, that he had named her the beneficiary of the SBP. The FSM lied. She discovered the deceit on 7 October 2015, by calling the Survivor Benefit Office in Cleveland, OH to confirm that she was still listed as the beneficiary for his SBP annuity. c. She is not the beneficiary for his SBP annuity. The FSM told their daughter that he has been diagnosed with stage 4 prostate cancer. His records need to be corrected before he dies so that an injustice does not occur. She is entitled to be the FSM's SBP as his court-ordered beneficiary. d. The FSM's other marriage resulted from bigamy; therefore, it invalidates the other claim for the FSM's SBP annuity. She should not be penalized because of her deceased lawyer's incompetence. The FSM appealed several points in the divorce decree to the Colorado Supreme Court, and was denied. The case was thrown out with "extreme prejudice." e. She is 75 years old, very sick, and only gets $761 per month for social security. She had several operations on her right ankle, which the FSM broke while beating her when he came back from the Republic of Vietnam. The FSM was an alcoholic. f. She was married to the FSM for 17 and a half years. She is not currently married. The court granted her this irrevocable maintenance, even after his remarriage, as compensation for the disability he caused. g. She has the senior lien on his SBP. She thinks her senators and representatives will agree with her. The FSM lied to her. The FSM was forced into retirement, since he committed bigamy. The IG's finding of bigamy led to his retirement. It was wrong for the bigamy spouse to be listed as the beneficiary. 3. The applicant provides her U.S. Army Certificate of Marriage and Final Orders, issued by the County of El Paso District Court, State of Colorado, on 9 November 1984. 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 Army Board for Correction of Military Records (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 provides a copy of her certificate of marriage, which shows she married the FSM on 2 November 1968 in Bavaria, West Germany. 3. The FSM's DD Form 93 (Record of Emergency Data), dated 8 June 1982, and verified on 22 November 1983, shows the applicant as his spouse. 4. The FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 21 November 1983. This document shows he was married and had dependent children, for which he elected full spouse and dependent children SBP coverage. Item 17 (Name of Spouse) is marked not applicable and he did not name his dependent child/children. 5. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from the Army on 31 January 1984. The FSM's rank/grade at the time of retirement was sergeant first class (SFC)/E-7. 6. The applicant provides a copy of her Final Orders, issued by the County of El Paso District Court, State of Colorado. This document shows her divorce was approved on 9 November 1984. The court awarded the applicant, in the event of the FSM's death, an irrevocable lien attached to the FSM's SBP in the amount of $600 per month. 7. The Defense Finance and Accounting Services (DFAS) provided a copy of the FSM's current marriage certificate. The marriage certificate shows the FSM remarried in Pierce County, Washington on 29 December 1995. In addition, DFAS provided a request by the FSM to restart his SBP spousal coverage premium deductions due to his remarriage. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 2. 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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 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 serving 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 Uniformed Services Former Souses Protection Act 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 requests correction of her ex-husband's record to show he was court ordered to provide her with a $600 portion of his SBP annuity upon his death. She contends her ex-husband's remarriage was invalid because of bigamy. 2. The evidence of record shows the FSM divorced the applicant on 9 November 1984. His divorce decree stipulated that he must ensure his former spouse would receive a $600 annuity from his SBP upon his death. There is no evidence that the FSM submitted a request to change his spouse coverage to former spouse coverage. The applicant concedes she did not submit a deemed election. The FSM remarried on 29 December 1995, and updated his spousal SBP election with DFAS accordingly. 3. In accordance with applicable governing laws, divorce courts may order SBP coverage without the member's consent. However, SBP annuities are not divisible. SBP annuities are paid in full to the widow, widower, former spouse if applicable, and then to minor children. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018986 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2