RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060009494 


	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:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Hassenritter

Member

Ms. Laverne M. Douglas

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 records be corrected to show he has former spouse Survivor Benefit Plan (SBP) coverage. 

2.  The applicant states, in effect, that he was required to name his former spouse as his SBP beneficiary by the court.

3.  The applicant provides a memorandum addressed to the Defense Finance and Accounting Service (DFAS), dated 22 May 2006; a memorandum to DFAS from his former spouse, dated 30 May 2003; a 3-page Superior Court of Georgia Final Judgment and Decree, dated 31 March 2003; and a State of Georgia Marriage License, dated 29 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 April 2003.  The application submitted in this case is dated 26 June 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 15 June 1951.  He married on an unknown date.

4.  On 24 May 1984, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  On this form he indicated that he elected spouse SBP coverage, full base amount.

5.  The applicant retired on 1 August 1984.  

6.  On 30 April 2003, he divorced.  The divorce decree stated in pertinent part that the applicant's retirement pay would be split 50/50 and that the SBP provision of his retirement would be made payable to his former spouse.  

7.  On 30 May 2003, the applicant's former spouse sent a memorandum to DFAS requesting former spouse payments from the applicant's retired pay and making a deemed election to remain the annuitant of the applicant's SBP. 

8.  On 24 March 2006, the applicant remarried.  

9.  On 22 May 2006, the applicant sent a memorandum to DFAS stating his divorce decree stated that his former spouse was to be the recipient of his SBP.  He further stated that he was informed by his former spouse that she was no longer to be the SBP recipient.  The applicant continued to state that he did not request to have his current spouse as his SBP recipient and that his former spouse was to be his SBP recipient.

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.  

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

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.  Evidence of record shows that the applicant divorced on 30 April 2003.  His former spouse sent a memorandum to DFAS on 30 May 2003, specifically making a deemed election of the SBP.  For some unknown reason, her request was lost or misplaced and not received at DFAS within the statutory one-year time limit.  The applicant has not yet been married to his current spouse for one year.  It would be equitable to correct the applicant's records to show that his former spouse properly requested a deemed election of the SBP in a timely manner.

2.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 April 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 April 2006.  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:

__KAN __  __DKH  _  __LMD__  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 30 May 2003, his former spouse made a written request for a deemed election of the SBP and her request was received and processed by the appropriate office in a timely manner.




___Kathleen A. Newman__
          CHAIRPERSON




INDEX

CASE ID
AR20060009494
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY
MR. SHATZER
ISSUES         1.
137.0300.0000
2.

3.

4.

5.

6.