PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2002073677


         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Harry B. Oberg		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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his records be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for former spouse coverage.

3. The applicant states that when he retired after the divorce, he was not counseled regarding the SBP and he made the mistake of electing not to participate in the SBP. He had no legal representation and just figured that he was retiring and his former spouse was out of his life forever. His former spouse’s attorney requested the Army honor the terms of the divorce agreement at such time as the applicant should retire. The attorney also enclosed his former spouse’s application for direct payments of his retired pay with the request. The applicant retired in April 1995. His former spouse did not begin receiving her 34 percent share of his retired pay until May 1997. In April 2001, his former spouse filed a contempt citation alleging that he had not made her the beneficiary of 34 percent of the SBP as agreed.

4. Counsel makes no additional contention.

5. The applicant's military records show that he was born on 23 April 1935. He enlisted in the U. S. Army Reserve in June 1958. He was commissioned in May 1963 and served on active duty from that time until around January 1972. He and his former spouse married on or about 27 October 1973. His notification of eligibility for retired pay (his 20-year letter) is dated 2 August 1983. He did not enroll in the Reserve Component SBP (RCSBP) at that time.

6. The applicant divorced on 11 November 1988. The property settlement agreement stated in pertinent part, “The Wife shall be a beneficiary of any survivor benefits, in a sum equal to thirty-four percent (34%) of said benefits, payable at the Husband’s death, should the Wife survive him.”

7. By letter dated April 1989, the attorney for the applicant’s former spouse sent to the U. S. Army Finance and Accounting Center in Indianapolis, IN a copy of the divorce decree, an Application for Direct Payment from a Member’s U. S. Army Retired Pay, and a certification signed by the attorney that the court order was final. The first paragraph of that letter noted that the applicant’s former spouse was awarded a portion of his retired pay as property division. The last paragraph noted that he trusted the enclosed was sufficient to allow the Army to honor the terms of the divorce decree and property settlement agreement at such time as the applicant should retire or in the event of his death. The SBP was not specifically mentioned in that letter.

8. The applicant transferred to the Retired Reserve on 4 April 1994.

9. Around April 1995, the applicant applied for retired pay and completed a Data for Payment of Retired Personnel, DD Form 2656. In section VII, he checked that he elected not to participate in the SBP.
10. The applicant remarried in 1998. His spouse declined to waive any current or future right she may have to the SBP.

11. 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.

12. 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. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

13. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

14. 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 member is participating in the SBP or was still on active duty and had not yet made an SBP election.

15. 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. 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. 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.

16. Phone conversation with the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) on 21 August 2002 revealed that DFAS-CL did not have a copy of the April 1989 letter from the applicant’s former spouse’s attorney notifying the Army that she was awarded a portion of his retired pay as property division. DFAS-CL noted that merely providing a copy of a divorce decree or property settlement agreement is not sufficient to satisfy the requirements of the law. A written request for a deemed election of the SBP must be made or at least the SBP must be specifically mentioned in writing.

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CONCLUSIONS:

1. Notwithstanding DFAS-CL's view in their 21 August 2002 phone conversation, a fair reading of the former spouse's attorney's April 1989 correspondence, which was sent to the Army Finance Center less than one year after the applicant and his former spouse divorced, is that the former spouse sought through that correspondence to perfect her claim to both the applicant's retired pay and to the SBP. Of particular note, the correspondence concluded "I trust the enclosed is sufficient to allow you to honor the terms of the Decree of Dissolution of Marriage and accompanying Property Settlement Agreement at such time as (the applicant) should retire or in the event of his death. If further information or documentation is required, please contact me at the above address and telephone." The attached Property Settlement Agreement stated that the applicant’s former spouse would be a beneficiary of his SBP in a sum equal to 34 percent of said benefits (although this could be somewhat confusing as, unless several children are beneficiaries, an SBP beneficiary can only receive 100 percent of the annuity.) In any case, clearly the correspondence, by its terms, addressed and sought to establish not only the former spouse's claim to a portion of the applicant's retired pay but also her claim to the SBP upon his death.

2. Even assuming that the April 1989 correspondence is, as a matter of law, defective in form, it is also the Board's opinion that it should be treated as triggering a deemed election for equitable reasons. In spite of counsel's request that he be contacted if further information was required, there is no evidence that the applicant's former spouse's attorney was ever contacted by the Army or informed his timely attempt to establish a deemed election on behalf of his client had failed. Refusal to treat the April 1989 correspondence as triggering a deemed election is an unnecessary exaltation of form over substance that allows government agencies to abrogate their responsibilities to read, respond, and provide guidance to those who seek to establish their entitlements.

3. It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career. The applicant's former spouse was married to him for about half of his military career. It is acknowledged that his current spouse does not desire to waive any future right to the SBP; however, in light of the above conclusions the Board regrets that it cannot consider her desires in making a fair and equitable determination as to who is the legal SBP beneficiary in this case.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the appropriate office received and accepted as a request for a deemed election of the SBP the applicant's former spouse's attorney's April 1989 letter and that his SBP election therefore be changed to former spouse coverage.

2. That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due as a result of the above noted correction.

BOARD VOTE:

__MKP__ __CJP __ _ _HBO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Margaret K. Patterson__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073677
SUFFIX
RECON
DATE BOARDED	2002/08/29
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	137.02
2.
3.
4.
5.
6.