RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060009651 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 former spouse, a former service member (FSM), be corrected to show that she had made a request for a deemed election of the Survivor Benefit Plan (SBP) within one year of their divorce.

2.  The applicant states, in effect, that the divorce decree shows the FSM voluntarily agreed, and then the court ordered him, to keep her as his SBP beneficiary.   They were married for thirty-three years. The FSM married his second wife in 1996 but divorced her 1999.  His second former spouse is not receiving SBP benefits.  

3.  The applicant further states that she was not aware of the requirement to submit a written request for a deemed election within one year of her divorce.  It was brought to her attention on 6 February 2006, when she called Defense Finance and Accounting Service (DFAS) to inquire about taxes, and was told that her SBP annuity had been suspended because DFAS could not locate her "Deemed Election."

4.  The applicant provides the FSM's Last Will and Testament; Retirement Orders; Certificate of Marriage; Divorce Decree; Letter from DFAS, dated 7 June 2002, with enclosed Application For Annuity (DD Form 1884) dated 10 April 2002; FSM's Death Certificate; Letter from DFAS to the applicant's Congressman, dated 3 May 2006; Request for Waiver of Debt, dated 18 April 2006; and the applicant's "Deemed Election", undated.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 10 September 1948 and served on active duty until 18 April 1955.  On 24 July 1958, he enlisted in the United States Army National Guard.  He and the applicant married on 7 January 1960.  He retired on 12 April 1988, in the rank of sergeant first class, pay grade of E7.  

2.  The FSM and the applicant divorced on 4 February 1993.  There was no division of real or personal property between the divorced parties, even though she was entitled to a portion of his military retirement.  The court ordered that the applicant remain as the irrevocable beneficiary of the FSM's SBP.  There is no evidence showing that the FSM made an election for former spouse coverage under the SBP within a year of this divorce.  The record shows the FSM paid SBP premiums until his death.

3.  The FSM died on 7 February 2002.  His death certificate shows his marital status as divorced.

4.   On 10 April 2002, the applicant submitted DD Form 1884 requesting an annuity under the SBP.

5.  On 11 June 2002, the DFAS established an SBP annuity account and began payments to the applicant.  Payments were made for the period from 8 February 2002 through 28 February 2006, totaling $14,206.67.  

6.  In February 2006, DFAS suspended the applicant's SBP annuity because there was no "Deemed Election" on file.  DFAS established a debt to the United States Government of $14,206.97 on the basis that the applicant was not entitled to this annuity.
   
7.  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.  

8.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

9.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order that would require SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

10.  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.  The FSM and the applicant married in 1960 and divorced in 1993.

2.  The court documents noted that the applicant did not share in any of the FSM's real or personal property.  The court directed that the FSM retain the applicant as his irrevocable SBP beneficiary. 

3.  There is no evidence of record showing that the FSM made an election for former spouse coverage under the SBP within a year of his divorce. 

4.  There is no evidence showing that the applicant requested a former spouse SBP deemed election within a year of the qualifying court order.  It is reasonable to presume that had she known about this requirement, she would have complied in order to retain her SBP benefit.

5.  DFAS established an annuity account and paid the applicant SBP benefits for 4 years, totaling $14,206.97.  In February 2006, DFAS identified this as an overpayment and informed the applicant of the debt.

6.   The applicant could have requested a deemed election within one year of the February 1993 court order.  It appears she failed to do so.  She was married to the FSM for 33 years, and about 28 of those years were during the FSM's military career.  His retirement pay was reduced for a period of 14 years in order to pay the SBP premiums. 

7.  Therefore, in view of the above, it would be equitable to correct the records to show the applicant made a request for a deemed election in a timely manner and to pay her an SBP annuity.  

BOARD VOTE:

_RMN___  __EEM__  _WFC __  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:
 
	a.  showing the applicant made a written request for a deemed election of the SBP on 5 February 1993, the day following her divorce, and that her request was received and processed by the appropriate office in a timely manner; and
	
	b.  showing that DFAS has established her SBP annuity account effective 
8 February 2002, and properly adjusted all debts to the United States Government that are related to this matter. 


 




__     William F. Crain__________
          CHAIRPERSON




INDEX

CASE ID
AR20060009651
SUFFIX

RECON
 
DATE BOARDED
20070308 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.