RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060007878 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Chester A. Damian

Member

Ms. Ernestine I. Fields

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 his former spouse be reinstated as his beneficiary under the Survivor Benefit Plan (SBP).  

2.  The applicant states, in effect, that he divorced his former spouse on 9 June 2002 and that same week he furnished Defense Finance and Accounting Service (DFAS) with a copy of his divorce decree and notified DFAS in writing of the fact and terms of his divorce with the understanding of continuing SBP coverage for his former spouse.

3.  The applicant further states that DFAS ignored his correspondence (as well as correspondence from his former spouse and counsel).  The applicant continues that he sought assistance from his state congressional representative. DFAS replied that the applicant had failed to select former spouse coverage within one year of his divorce and his former spouse had failed to make a deemed election during that year as well.

4.  The applicant states that DFAS had failed to notify him on the specifics of what was needed to continue SBP for his former spouse.  The applicant maintains that the divorce decree provided to DFAS constituted his intention to continue SBP coverage for his former spouse.

5.  The applicant provides a 3-page undated Summary and Argument; 
three letters addressed to DFAS; a 3-page Superior Court of California Divorce Judgment, dated 9 June 2002; four DFAS Retiree Account Statements; a DFAS letter, dated 5 April 2006; a State of California License and Certificate of Marriage, dated 23 July 2002; and an SBP Waiver Statement signed by the applicant's current spouse, dated 1 March 2007. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
9 June 2002.  The application submitted in this case is dated 27 April 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3.  The applicant was commissioned in the Regular Army on 4 June 1957.  He states that he married his former spouse on the same day.  

4.  On 11 January 1979, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  On this form he indicated that he elected full spouse SBP coverage.

5.  The applicant retired on 31 May 1979.  

6.  On 9 June 2002, he divorced.  The divorce marriage settlement agreement that was incorporated into the decree stated in pertinent part that the applicant's retirement pay would be split 50/50 with his former spouse and that the SBP provision of his retirement would be made payable to his former spouse.  

7.  On 11 June 2002, the applicant notified DFAS of his divorce decree court order.  He stated that he had enclosed a copy of the Marital Settlement Agreement that described the agreed division of his retired pay.  He further stated that it was his understanding that DFAS procedure was to contact his former spouse and arrange to remit her share to her directly.  He stated that he would continue to remit to his former spouse her share of his retirement pay directly until she had an account set up.  

8.  On 22 June 2002, the applicant remarried.  

9.  On 31 July 2004, the applicant's former spouse sent a letter to DFAS stating that she was entitled to and wanted to continue receiving SBP coverage. 

10.  On 5 April 2006, DFAS informed the applicant by letter that he had failed to make an SBP election for former spouse coverage within one year of his divorce and that the letter submitted by his former spouse requesting continued SBP coverage was past the one year time frame to request coverage.  As a result, DFAS refunded the monthly SBP premiums paid by the applicant for the period
1 July 2002 through 28 February 2006.

11.  On 1 March 2007, the applicant's current spouse irrevocably waived her right to the SBP with no qualifications.

12.  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.



13.  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.  

14.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members.

15.  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.  It appears neither the applicant nor the former spouse requested that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one year time limit (his 11 June 2002 letter mentioned the division of retired pay but not the SBP, and the divorce decree or marital settlement agreement by itself does not qualify as a request).  However, the applicant continued to pay premiums after his divorce until it was stopped by DFAS.  It appears that it was always his intention to comply with the court’s order.  

2.  His current spouse has provided her concurrence with his request to change his SBP election to former spouse coverage.  It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 June 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 June 2005.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__KLW__  __CAD__  __EIF___  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, on 10 June 2002, he made a written request to change his SBP coverage to former spouse coverage and his request was received and processed by the appropriate officials in a timely manner.




__ Mr. Kenneth L. Wright _
          CHAIRPERSON




INDEX

CASE ID
ARA0060007878
SUFFIX

RECON

DATE BOARDED
27 MARCH 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
137.0200.0000
2.

3.

4.

5.

6.