PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003085250


         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
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 cessation of the Survivor Benefit Plan (SBP) allotment from his retirement pay and discontinuance of SBP coverage for his former spouse (FS).

3. The applicant states that the court ordered divorce decree required him to provide SBP coverage, with his FS as the beneficiary, with the proviso that the FS make all necessary payments required for continuation of coverage. He contends that his FS has never complied with the court order, in that she did not make any payments, but that all payments have been deducted from his retirement pay since the divorce. He further states that the court ordered the arrangement to cease when the child involved in the case was no longer a minor.

4. The applicant’s military records show that he entered active duty on 4 February 1957 and retired on 1 March 1983, in the grade of Staff Sergeant.

5. The applicant married the FS around 1991 and adopted her minor child, who was born on 4 August 1984. During the 1993 open season the applicant elected to enroll in the SBP, choosing full spouse and child coverage, effective 1 April 1993.

6. The applicant and FS divorced in March of 2000. The original Decree of Dissolution of Marriage, dated 2 March 2000, states, in pertinent part, “that the Petitioner (applicant) is hereby relieved of the responsibility of continuance of the survivor’s benefit plan from the petitioner’s former military service, but that the respondent (FS) may be permitted to continue the payments on said plan by paying the monthly premium during the time that the parties’ minor child, [names minor child], is a minor, as permitted by applicable federal regulations.”

7. Some eight months later, in November of 2000, the attorney for the applicant’s FS contacted the applicant’s attorney seeking an amendment to the divorce decree. In his letter, he stated that “[t]he necessity of this was created by the bureaucrats at the Army Survivor’s Benefit Plan Office who did not think that the language in the original Decree was specific enough for their purposes. I have submitted the language that is contained in the Amended Decree to the Army and they have approved it. Nothing, of course, is changed but the additional precision of the language to satisfy the army. This, of course, would have no practical effect on your client.” On 13 November 2000, the “approved” language became part of the Amended Decree of Dissolution of Marriage. The new language thus became “Petitioner (applicant) is hereby relieved of the responsibility of paying for the continuance of the survivor benefit plan from petitioner’s former military service, but that the Respondent, [names FS], shall be maintained as the beneficiary of the Petitioner’s survivor’s benefit plan and the Respondent, [names FS], is ORDERED to make whatever payments may be required for the continuation of said plan by paying the monthly premium on the base amount of said plan up to the amount of coverage elected or up to and including full coverage of the survivor’s benefit plan, under such circumstances that the entire cost of the continuation of said plan shall be borne by the Respondent, [names FS]. Said arrangement shall remain in place so long as [names minor child] is a minor, all as permitted by applicable federal regulations.” (Emphasis added.)

8. By letter faxed to the Defense Finance and Accounting Service (DFAS) on 15 December 2000, the applicant’s FS requested a deemed election of the applicant’s SBP, within one year of the court ordered divorce degree. His current election is former spouse, effective 13 November 2000. The payments are being deducted from his retired pay.

9. 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. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.

10. 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.

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

12. 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.

13. 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.

14. Title 10, U.S. Code, section 1450(a) provides that a monthly annuity should be paid to a member’s beneficiary under the SBP as follows: (1) the eligible surviving spouse or eligible former spouse; (2) the surviving dependent children in equal shares if the eligible surviving spouse or former spouse becomes ineligible.

CONCLUSIONS:

1. The Board noted that the language of the 2 March 2000, original Decree of Dissolution of Marriage, clearly shows that the court’s intent was not to award applicant’s FS any interest in SBP in her own right, or even to require SBP coverage for the minor daughter at applicant’s expense. Rather, the court intended to give the applicant’s FS the option of continuing SBP coverage during their daughter’s minority for the purpose of providing support, only to the minor daughter, in the event of the applicant’s death. The fact that the applicant had no court-imposed obligation in the nature of alimony, but did have child support obligation, is also consistent with the plain language of the portions of the degree quoted above.

2. The Board noted that, while the language of the 13 November 2000, Amended Decree of Dissolution of Marriage, purports to name the applicant’s FS as his SBP beneficiary, the intent of both parties, especially in light of the applicant’s FS’s attorney’s correspondence, remain the same as in the original decree.

3. The Board noted that, although there was confusion on the part of the attorneys involved, and perhaps on the part of Army personnel with whom at least one of the attorneys apparently consulted, it is clear that the purpose of the SBP proviso was to provide a financial safety net for the minor child.

4. Saying all this, the divorce decree need not have mentioned the SBP at all. The applicant had elected spouse and child coverage. His divorce suspended his spouse coverage but did not affect the child portion of his elected coverage. His dependent child became his eligible SBP beneficiary after his divorce.

5. Lastly, the Board noted that, while the applicant’s FS was ordered by the court to make all SBP premium payments, the FS has not done so and all SBP payments have been withheld from the applicant’s retired pay by DFAS.

6. Since it was clearly not the court’s intent to provide SBP coverage to the FS, DFAS erred when it accepted a request for a deemed election from the FS. The applicant’s records should be corrected to show a deemed election was not granted.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected to show that the Defense Finance and Accounting Service rejected the individual’s former spouse’s “deemed” election request.

2. That all of the Department of the Army records related to this case be corrected to show that the individual provided child only coverage in the Survivor Benefit Plan from the date of his divorce in March, 2000.

3. That appropriate action be taken by the Defense Finance and Accounting Service to repay that portion of Survivor Benefit Plan premium amounts that have been deducted from the individual’s retirement pay and attributable for coverage to his former spouse.

BOARD VOTE:

___KAN_ __RVO___ __PHM_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003085250
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	130
ISSUES 1.	128.1800.0000
2.
3.
4.
5.
6.