RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060008171 


	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.




	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 Survivor Benefit Plan (SBP) coverage election made by her former spouse, a former service member (FSM), be changed from "Spouse Only" to "Former Spouse Only".  

2.  The applicant states, in effect, that the Military Pension Division Order published with their Divorce Degree stipulated that she could continue her SBP coverage at her own cost.  Further argument and supporting documentation is submitted by counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that appropriate action be taken to secure the SBP coverage to which the applicant is entitled, for which she has continued to make monthly premium payments on. 

2.  Counsel provides supporting documents on behalf of the applicant with her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 31 January 1993.  The application submitted in this case is dated 
19 May 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 FSM’s record shows he entered the Regular Army on 4 March 1969, and that he continuously served on active duty for 23 years, 10 months, and 27 days until being honorably released from active duty for the purpose of retirement on 31 January 1993, in the rank of lieutenant colonel (LTC).  

4.  The applicant and FSM were married on 17 February 1973 and divorced on 
25 August 2004.  On 31 January 1993, during his retirement processing, the FSM completed a Data for Payment of Retired Army Personnel (DA Form 4240), in which he elected “Spouse Only” SBP coverage.  

5.  On 25 August 2004, in conjunction with the applicant's divorce, the District Court of Leavenworth County Kansas, Civil Court Department, issued a Military Pension Division Order.  This Order addressed the retirement interests acquired by the FSM based on his membership in the Army.  It stated that the applicant was granted an assignment of part of the FSM's retirement benefits and that she would receive fifty (50%) of the FSM's gross monthly retirement pay.  It further stipulated that the applicant shall be entitled to elect and continue SBP coverage at her own cost. 

6.  On or about September 2004, the applicant submitted her Divorce Degree with Military Pension Division Order and the Qualified Domestic Relations Order for SBP coverage she was advised to submit by DFAS to the Retired Military Pay Division, DFAS, London Center, Kentucky.  A Certified Mail Receipt provided by the applicant confirms DFAS, London Center, received these documents on 
27 September 2004.  At this time, the applicant was informed that the cost of SBP premiums would be deducted from the FSM's retired pay.  

7.  On 18 February 2005, the District Court of Leavenworth County, Kansas ordered, with the concurrence of both parties, that the FSM would deduct from the maintenance payment to his former spouse the cost of the SBP coverage deducted from his military retirement benefits.  

8.  In the processing of this case, a member of the Board staff coordinated with DFAS, Retired Pay Inquiries Branch, Cleveland, Ohio, and confirmed the FSM elected "Spouse Only" coverage at the time of his retirement, and that the applicant was his spouse at the time.  It further shows that he is currently paying SBP premiums and that his former spouse is listed by name as the beneficiary.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.
10.  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.  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.

11.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant and the FSM were divorced on 25 August 2004, and that they agreed that the applicant would continue her SBP coverage as a former spouse at her own expense.  This order was later revised to allow the FSM to deduct the cost of SBP premiums from the applicant's maintenance payment to allow the SBP premium to be continued to be deducted from his retired pay.  

2.  By law, incident to a proceeding of divorce, a member has one year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within one year of a date of a court-order of divorce.  

4.  The evidence also confirms that the applicant, through counsel, submitted the applicant's Divorce Degree with accompanying Military Pension Division Order, and the Qualified Domestic Relations Order requested by DFAS on
27 September 2004, just over a month after their divorce, well within the 
1 year period allowed by law for a deemed election.  

5.  Given SBP premiums are still being deducted from the FSM's retired pay and the applicant is still listed as the beneficiary, it is clear that both the applicant and FSM were under the impression that SBP coverage was continued for the applicant as a former spouse, as ordered by their Military Pension Division Order, and that the appropriate election had been accomplished based on their submission of the required documents in September 2004.  Therefore, it would be appropriate and serve the interest of equity and justice to correct the FSM's record to show the applicant made a deemed election request on 27 September 2004, when she submitted the required documents, and to show the FSM's SBP election from the date of their divorce is "Former Spouse" instead of “Spouse Only”, and that the applicant is the legitimate beneficiary.   

BOARD VOTE:

___x _  __x_  __x_  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 FSM be corrected by showing his Survivor Benefit Plan election was changed from “Spouse Only” to “Former Spouse” on 25 August 2004, the date of his divorce from the applicant.




_____x______
          CHAIRPERSON



INDEX

CASE ID
AR20060008171
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/22
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1993/01/31
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON
Retirement
BOARD DECISION
Grant
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137
2.

3.

4.

5.

6.