RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000548


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the records of her former spouse, a service
member (SM), be corrected to show she made a timely written request for a
deemed election of the SM’s Survivor Benefit Plan (SBP).

2.  The applicant states that her attorney served a certified copy of a
Domestic Relations Order upon the Defense Finance and Accounting Service
(DFAS) on 13 December 2004.  She states it makes no sense why DFAS denies
receiving the written request within one year of the divorce, which was 9
February 2004.  The timeline was clearly adhered to, and it was clearly the
intent of the              13 December 2004 letter to make the deemed
election on her behalf and it should qualify as a deemed election.  It was
clear that it was the intent [of the letter] not only to submit a claim for
direct payment of the SM’s retired pay but, for all intents and purposes,
to also make the deemed election for former spouse SBP coverage.  She
firmly believes there was a failure to act on the part of DFAS.

3.  The applicant provides her attorney’s 13 December 2004 letter to DFAS
with attached Domestic Relations Order; a 14 March 2005 letter from her
attorney to DFAS; a letter, dated 12 January 2005, from DFAS to the
applicant with the related envelope postmarked 14 March 2005; an 11 May
2005 letter from her attorney to the applicant with an attached affidavit,
the judgment of divorce, the separation agreement, and a DD Form 2293
(Application for Former Spouse Payments from Retired Pay); a 26 July 2005
letter from the applicant to DFAS; a 23 November 2005 letter from DFAS to
the applicant’s Member of Congress; and a 13 December 2005 letter to the
applicant from her Member of Congress.

CONSIDERATION OF EVIDENCE:

1.  The SM enlisted in the Regular Army on 18 June 1985.  He is currently
on active duty, with his records reflecting an expiration term of service
of 30 June 2009.

2.  The SM and the applicant married on 7 June 1991.

3.  The SM and the applicant separated on 3 September 2002.  A separation
agreement dated 8 November 2002 stated, in pertinent part, “In the event
the parties are divorced prior to the husband’s retirement from military
service, the husband shall designate the former spouse, (the applicant), as
a Survivor Benefit Plan (SBP) beneficiary at the time of his retirement.”

4.  The SM and the applicant divorced on 9 February 2004.  The 8 November
2002 separation agreement was incorporated into the Judgment of Divorce.

5.  A Domestic Relations Order dated 9 November 2004 stated, in pertinent
part, that the applicant was awarded twenty-seven and one half percent of
the SM’s retired pay.  It also awarded the applicant the SBP.

6.  On 13 December 2004, the applicant’s attorney sent a letter to DFAS
stating, “Enclosed please find a certified copy of a Domestic Relations
Order, together with a completed Application for Former Spouse Payments
from Retired Pay.  Please provide written verification of your receipt and
acceptance of the Order.”

7.  By letter dated 12 January 2005 (but postmarked 14 March 2005), DFAS
informed the applicant it had received her application for payment of a
portion of the SM’s retired pay.  It also informed her, “If your divorce
decree specifies that you are to be designated as a former spouse
beneficiary for the Survivor Benefit Plan (SBP), you must make a ‘deemed
election’ for SBP coverage within one year of the date of your divorce….”

8.  On 14 March 2005, the applicant’s attorney sent a letter to DFAS
informing DFAS she (the attorney) had forwarded a certified copy of a
Domestic Relations Order and an Application for Former Spouse Payments from
Retired Pay on     13 December 2004 and again requested verification of
receipt and acceptance of the Order.

9.  By letter dated 23 November 2005, DFAS informed the applicant’s Member
of Congress that a valid deemed election from a former spouse requires a
specific written request from the former spouse or her attorney, which must
refer to the member’s obligation to provide former spouse SBP coverage, and
a copy of the relevant court order.  Receipt of a copy of the party’s
divorce decree is insufficient by itself as a written request for former
spouse SBP coverage.

10.  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.

11.  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.

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, incident to a
proceeding of divorce, to elect to provide an annuity to a former spouse if
required by court order to do so.  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 AND CONCLUSIONS:

1.  Contrary to the applicant’s assertion, her attorney’s 13 December 2004
letter to DFAS does not clearly indicate that it was a request for a deemed
election for SPB former spouse coverage.

2.  Her attorney’s 13 December 2004 letter merely stated, “Enclosed please
find a certified copy of a Domestic Relations Order, together with a
completed Application for Former Spouse Payments from Retired Pay.  Please
provide written verification of your receipt and acceptance of the Order.”
The letter mentioned only the applicant’s portion of the SM’s retired pay
(which required only acceptance of the Order).  It did not mention the SBP
at all.

3.  As DFAS’s 23 November 2005 letter to the applicant’s Member of Congress
stated, [by law] a valid election from a former spouse requires a specific,
written request, which must refer to the member’s obligation to provide
former spouse SBP coverage and a copy of the relevant court order.  By law,
receipt of the divorce decree is insufficient by itself to qualify as a
written request for former spouse SBP coverage.

4.  Nevertheless, the SM and the applicant divorced on 9 February 2004.
The applicant’s attorney forwarded the divorce decree to DFAS on 13
December 2004.  DFAS responded by letter dated 12 January 2005 (within one
year of the divorce) and informed the applicant that she must make a deemed
election of the SBP within one year of the divorce.  However, it appears
DFAS’s letter was not mailed until 14 March 2005 (more than one year after
the divorce), effectively preventing the applicant or her attorney from
discovering that the 13 December 2004 letter was legally insufficient as a
request for a deemed election.

5.  DFAS’s untimely response prevented the applicant or her attorney from
discovering and correcting their error in a timely fashion.  Since the SM
is still on active duty and therefore has not yet made his SBP election, it
would be equitable to correct the records to show that the 13 December 2004
letter from the applicant’s attorney was properly submitted as a written
request for a deemed election of the SBP and was accepted by DFAS as such
within one year of the divorce.

BOARD VOTE:

__wdp___  __jcr___  __ksj___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing that the 13 December 2004 letter from the applicant’s attorney was
properly submitted as a written request for a deemed election of the SBP
and was accepted by DFAS as such within one year of the divorce.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000548                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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