MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002077995

         I certify that hereinafter is recorded the record of consideration 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:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Pendergast		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
advisory opinion, if any)

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APPLICANT REQUESTS: That she, the former spouse of the deceased former service member (FSM), be determined to be the Survivor Benefit Plan (SBP) beneficiary.

APPLICANT STATES: That the FSM defied the court order to change his SBP coverage to former spouse coverage. She filed the necessary paperwork in a timely manner but it was lost or misplaced by Defense Finance and Accounting Service (DFAS) personnel. The FSM remarried before the 30-day waiting period had expired. Supporting evidence includes a 16 September 2002 letter from her divorce counsel in which he stated he timely filed a request for "registration of your status as a former spouse under the SBP statutes with DFAS."

EVIDENCE OF RECORD: The FSM's military records show:

He enlisted in the Regular Army on 20 June 1955. He and the applicant married on 30 September 1958. He retired on 1 January 1979. Records at DFAS show that he enrolled in the SBP for spouse coverage at that time.

The FSM and the applicant divorced on 28 July 1995. Pages 4 through 8 of the divorce decree discuss division of the FSM's retired pay and the SBP. The divorce decree awarded the applicant 44 percent of the FSM's retired pay and ordered that he designate her as his SBP beneficiary as a former spouse. The applicant was ordered to pay 100 percent of the cost of the SBP.

By letter dated 14 September 1995, counsel for the applicant forwarded to DFAS a DFAS-IN Form 0-1767 (Application for Direct Payments from a Member's U. S. Army Retired Pay Pursuant to the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. 1408), a certified copy of the final divorce decree, and a copy of the marriage certificate. He informed DFAS that the final decree of divorce awarded the applicant 44 percent of the FSM’s retired pay. He informed DFAS that the decree of divorce set forth the pertinent information required by the Uniformed Services Former Spouses’ Protection Act (USFSPA) beginning at page 4. This letter was received by DFAS on 19 September 1995.

By letter dated 30 November 1994 (apparently a typographical error meant to read 30 November 1995), counsel for the applicant reminded DFAS that they had submitted an application for direct pay of military pay, which was received by DFAS on 19 September 1995. As of that November, DFAS failed to submit payments to her and failed to notify his office of any problems which would justify the delay.

By letter dated 22 January 1996 to the applicant, her counsel informed her that DFAS lost her application for direct pay. He acknowledged his frustration with DFAS was minor in comparison to how she must be feeling. He stated that, repeatedly, DFAS withholds funds from the wrong people and her application for her direct pay had, up to that point, been defeated by an inefficient system where the right hand did not know what the left was doing.

By letter dated 15 February 1996, DFAS informed the applicant that her application for a portion of the FSM's retired pay had been received.

The FSM remarried on an unknown date.

The FSM died on 18 May 2002.

DFAS confirmed that the FSM's widow is receiving the SBP annuity.

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. Elections are made by category, not by name.

Public Law 97-252, the 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.

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

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

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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. When the FSM and the applicant divorced in July 1995, the divorce decree awarded the applicant a portion of the FSM's retired pay and ordered that he change his SBP coverage to former spouse coverage.

2. By letter dated 14 September 1995, counsel for the applicant forwarded to DFAS an application for a portion of the FSM's retired pay. Although he mentioned in this letter that the decree of divorce set forth the pertinent information required by the USFSPA beginning at page 4, his letter did not specifically request a deemed election of the SBP.

3. Two months later, counsel for the applicant reminded DFAS that they had submitted an application for direct pay of military pay but as of that date DFAS failed to submit payments to her and failed to notify his office of any problems which would justify the delay. By letter dated 22 January 1996 to the applicant, her counsel informed her that DFAS lost her application for direct pay and disparaged DFAS's efficiency. It appears that at no time did he check with DFAS to ensure that the FSM's SBP coverage had been changed to former spouse coverage.

4. It appears it was never the intention of the FSM to comply with the court order to change his SBP coverage to former spouse and, unfortunately, neither of the two letters counsel sent to DFAS specifically requested, as required by law, that a deemed election of the SBP be made.

5. There is no evidence to show that the FSM's new marriage was declared null because he married before the waiting period was over or for any other reason. His SBP election of spouse coverage was in effect on the day he died; therefore, at the one-year anniversary of his remarriage his widow acquired proprietary rights over the annuity as his legal beneficiary. Absent a statement from the FSM’s widow asserting that she agrees to renounce payment of the SBP annuity in perpetuity in favor of the applicant, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.

6. Regrettably, in view of the foregoing there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE__ __JEA _ __ECP __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077995
SUFFIX
RECON
DATE BOARDED	2003/02/06
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.