RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060008071 


	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.



Acting Director


Analyst


The following members, a quorum, were present:



Chairperson



Member


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, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show that based on her having not concurred with the FSM’s election not to participate in the Survivor Benefit Plan (SBP) that full coverage was placed in effect on the date of his retirement.  The applicant further requests that the records be corrected to show her deemed election was accepted by the Defense Finance and Accounting Service (DFAS) and that she is now entitled to receive benefits under SBP.

2.  The applicant states, in effect, that at the time of the FSM’s retirement, she was informed that he could not elect less than full coverage without her written consent (signature).  The applicant further states that all requests by her, her attorney, and her Congressional representative to DFAS for any documents that would show her concurrence with the FSM’s election failed to provide such documentation. 

3.  The applicant provides a copy of a DD Form 2656 (Data For Payment of Retired Personnel), the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of  31 January 1995), court documents from the State of Wisconsin Circuit Court, Family Court Branch, the applicant’s request for “deemed election”, a statement from the applicant dated 23 February 1996, a letter from DFAS dated 17 February 1996, two letters from the applicant’s attorney and her Congressional representative, and her former spouse’s death certificate showing a date of death as 30 October 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant and the FSM were married on 27 May 1978.

2.  A letter, dated 17 October 1994, from the Office of Retirement Services at Headquarters, Fort McCoy, Sparta, Wisconsin advised the applicant that should her (then) spouse elect any option under the SBP providing less than full coverage for the spouse and the spouse disagrees with that choice, the Soldier’s SBP election will automatically be established at full spouse or full spouse and child(ren) coverage.  Paragraph 6 of this letter specifically states that “Coverage may not be declined unless the spouse agrees in writing.”  A space for the spouse to acknowledge receipt of this letter is provided at the bottom of page 3 of the letter.

3.  A U.S. Postal Receipt shows the applicant received the above letter on 
22 October 1994.

4.  The FSM’s military personnel record jacket (MPRJ) contains a copy of the bottom portion of the Office of Retirement Services letter, dated 17 October 1994, which contains the applicant’s signature acknowledging receipt of the letter (emphasis added) and is dated 28 October 1994.  

5.  On 9 January 1995, the FSM elected not to participate in the SBP.  Item 35 (Signature of Spouse) of the DD Form 2656 shows that a certified letter was sent to the FSM’s spouse on 17 October 1994.

6.  On 31 January 1995, the FSM was released from active duty due to his having sufficient service for retirement and placed on the Retired List the following day.

7.  An undated court order (marked as “proposed draft”) shows an order relating to the FSM’s Army retirement plan coming before the court for final hearing on 
17 October 1995 and ordered, in pertinent part, that the applicant was and shall be deemed as the irrevocable beneficiary of the SBP through the FSM’s military retirement and the FSM shall execute such paperwork as required to make or extend the election of the applicant as said beneficiary, and shall do nothing to reduce or eliminate that benefit to the applicant.  The order further stated that the FSM shall elect former spouse and children option and shall select as the base amount the full amount of his monthly retirement pay or an amount that will provide a survivor benefit to the applicant equal in all respects to the amount of her entitlement to his retirement pay.

8.  On 15 January 1996, the applicant submitted a request to DFAS, based on a proceeding of divorce and ratified by a court order signed and dated 17 October 1995, to be deemed the former spouse of the FSM for the purpose of survivor benefit coverage under the SBP.  

9.  A letter, dated 17 February 1996, from DFAS informed the applicant that her request for deemed former spouse election could not be honored.  The letter further advised the applicant that she and the FSM had elected to decline SBP at the time of the applicant’s retirement and therefore, she could not be covered as a former spouse.  This letter was signed by a pay technician (GS-4/7).

10.  In a statement, dated 23 February 1996, the applicant states that she did not sign anything declining SBP and that when she requested information from DFAS showing that she had declined SBP, she was informed that the paperwork could not be released without a court order.


11.  A letter, dated 12 March 1996, from the applicant’s attorney to DFAS requested a copy of the SBP documents which purported to show an election by the applicant declining SBP protection.  The records do not contain a response to this letter.

12.  A letter, dated 8 May 1996, from the applicant’s attorney to her Congressional representative requested that office’s assistance in obtaining a copy of the SBP documents from DFAS which purported to show an election by the applicant declining SBP protection.

13.  An affidavit filed with the State of Wisconsin Circuit Court, Family Court Branch, dated 4 June 1996 and filed 6 June 1996, shows the applicant’s attorney, having been duly sworn on oath, deposed and stated:

	a.  she was the applicant’s attorney at the time of her divorce and has assisted the applicant’s attempts to enforce the court order originally entered on 24 February 1995;

	b.  the Judgment of Divorce was not finalized and signed by the Court until 
5 September 1995;

	c.  the judgment of divorce required the FSM to elect SBP coverage and pay for all SBP premiums until the youngest child turned 18 (23 December 2000).  Thereafter, the applicant was responsible for 37.5 percent of the cost of SBP coverage.

	d.  upon information and belief the SBP benefits have not been continued and the applicant had been unable to obtain military records to confirm the same; and

	e.  the applicant requested the Court issue an order requiring release of all records relating to the FSM and whether or not there is SBP coverage for the applicant.

14.  A letter, dated 19 June 1996, from the applicant’s Congressional representative to DFAS requested that DFAS provide the documents showing that the applicant had waived her rights to the SBP.  The records do not contain a response to this letter.

15.  An affidavit filed with the State of Wisconsin Circuit Court, Family Court Branch, dated 14 March 1997 shows the applicant, having been duly sworn on oath, deposed and stated:

	a.  she had never signed any document declining coverage under the SBP;

	b.  that she wished the coverage to continue; and

	c.  that she had been informed the FSM had declined coverage under the SBP.

16.  The FSM died on 30 October 2005.  His death certificate shows that he was divorced.

17.  On 13 February 2007, the staff of the ABCMR requested that DFAS provide a copy of the applicant’s declination of benefits under the SBP.

18.  An e-mail from DFAS states they contacted Retired Pay in Cleveland about the DD 2656 and their response was there are no documents available going back that far.

19.  Public Law 99-145, enacted on 8 November 1985 (effective 1 March 1986), required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.  Without written concurrence the Soldier’s SBP election will automatically be established at full spouse or full spouse and child(ren) coverage.

20.  Title 10, Section 1450 (under Public Law 98-525, 19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

	a.  a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and

	b.  a copy of court order or other official statement, either: 

	1)  copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or

	2)  a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that all attempts to obtain any documents showing the applicant concurred with the FSM’s election of non-participation in the SBP since 1996 have failed to produce such a document.  In accordance with 
Public Law 99-145, without such concurrence, on the date of the FSM’s retirement SBP election automatically would be established at full spouse or full spouse and child(ren) coverage.  Therefore, it would be equitable for the FSM’s records to be corrected to show SBP election was automatically established on the date of his retirement.

2.  The evidence shows the applicant submitted her request for “deemed election” for former spouse coverage within one year of the date of divorce.  Therefore, it would be equitable to correct the records to show that the applicant’s request for “deemed election” was granted.

3.  In view of the above, the applicant is therefore entitled to SBP benefits as the FSM’s former spouse and based on the FSM’s military service.

4.  Although relief is appropriate, the ABCMR recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the ABCMR recognizes that all SBP premiums due since the FSM’s retirement must be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant, despite the terms of the divorce decree.  To the extent that these premiums should have rightfully been paid by the FSM, the applicant’s recourse is limited to an action against the FSM’s estate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 FSM be corrected by showing:

	a.  the FSM’s SBP election was automatically established at full spouse or full spouse and child(ren) coverage on 31 January 1995;

	b.  the applicant’s request for deemed election for former spouse coverage under the SBP was honored by DFAS; and

	c.  upon the death of the FSM on 30 October 2005, the applicant is entitled to benefits under the SBP.

2.  The applicant is responsible for payment of the SBP premiums due and payable since the FSM’S retirement and will be deducted from benefits payable to the applicant.




_________William F. Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060018071
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.