RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 June 2007
	DOCKET NUMBER:  AR20060013769 


	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.


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	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 she was married to the FSM for 23 years prior to their divorce.  She states that upon their divorce the FSM agreed to keep her as his SBP beneficiary and that this agreement was incorporated into the divorce decree.  However, the FSM failed to change the SBP coverage election to "Former Spouse Only" and was found in contempt by the court for his failure to comply with the court order.  She states that she has been in and out of court for the past nine years with the FSM to have this corrected to no avail.  She further states that she spent 20 years of the applicant's military career with him and feels she has earned these benefits, and is now requesting the records be corrected to show the SBP election as "Former Spouse Only" vice "Spouse Only" coverage.

3.  The applicant provides the following documents in support of her application:  Circuit Court of Dunklin County, Missouri, Marital Settlement and Separation Agreement, dated 7 October 1997; Circuit Court of Dunklin County, Missouri 
Judgment and Decree of Dissolution, dated 22 October 1997; Attorney Letter to Defense Finance and Accounting Service, dated 27 March 2001 and 
4 November 2002; Circuit Court of Dunklin County, Missouri, Judgment, Order, Findings and Conclusions, dated 30 September 2002; Office of the Assistant Secretary of Defense Letter, dated 26 July 2002; and Circuit Court of Dunklin County, Missouri Judgment and Order of Contempt, dated 30 March 2005.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he served on active duty until being honorably released from active duty for the purpose of retirement on 31 October 1991, in the rank of chief warrant officer three (CW3).  

2.  On 27 June 1991, 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.  

3.  On 7 October 1997, the applicant and FSM were separated.  During the separation process, a Marital Settlement and Separation Agreement was prepared, in which the FSM agreed to maintain and pay premiums for the SBP coverage, guaranteeing the applicant would be the beneficiary of the SBP.  It further stipulated that the applicant was not required to perform any act to insure such coverage. 
4.  On 22 October 1997, the divorce decree issued by the State of Missouri approved the terms of the Marital Settlement and Separation Agreement and incorporated them into the Judgment and Decree of Dissolution.  

5.  The FSM failed to comply with the court order to maintain the SBP coverage on the applicant as his "Former Spouse," and the applicant failed to request a deemed election be made within one year of the divorce.  

6.  On 23 October 1997, the FSM remarried and changed the SBP beneficiary name to his current wife.  The SBP coverage remained in the spouse category.

7.  On 27 March 2001, the applicant's attorney provided the Defense Finance and Accounting Service (DFAS) a certified copy of the applicant's and FSM Judgment and Decree of Dissolution, which showed the applicant was entitled to SBP coverage as the "Former Spouse."  DFAS did not accept this document as a deemed election.  

8.  On 26 July 2002, the Office of the Assistant Secretary of Defense, Director of Compensation, responded to a Congressional inquiry in regards to the applicant's SBP entitlement.  This official stated that the applicant had been designated the beneficiary of her former husband's SBP plan prior to their divorce, and that he or she was obligated to notify the appropriate finance center of the change to the SBP coverage to show "Former Spouse."  He further stated that it appeared in this case that the court had required the FSM to continue coverage on the applicant; however, the FSM failed to comply with the court order.  He further stated that the applicant could have enforced the court order had she served notice of the order to DFAS within one year of the divorce.  However, she did not take this action.  Therefore, under these circumstances he recommended she apply to this Board to request the record be corrected to show she made a deemed election within one year of the divorce.

9.  On 30 September 2002, the Circuit Court of Dunklin County, Missouri issued a Judgment, Order, Findings and Conclusions.  This document restated the Marital Settlement and Separation Agreement entered by both parties provided that the FSM pay the SBP premiums, guaranteeing the applicant as the beneficiary.  It also stipulated that if the FSM failed to take all steps necessary on his part as ordered to have the applicant named as his SBP beneficiary as his "Former Spouse," the Court would enter a particular order of sanctions for his failure to comply with this order and the dissolution judgment.  It further stipulated that if the FSM complied with the order and the Department of Defense refused to do so, the Court would enter a different order of sanctions for his past failures to comply with the dissolution judgment.

10.  On 30 March 2005, the Circuit Court of Dunklin County, Missouri issued a Judgment and Order of Contempt.  This order stated that the Judgment, Order, Findings and Conclusions, dated 30 September 2002, was incorporated in and made part of the Judgment addressing the issue of the SBP Insurance Policy and beneficiary.  Having considered the matter, the Court concluded that the FSM had failed to comply with the Court's 30 September 2002 order concerning the issue of the SBP coverage for his former spouse.  As a result of the FSM's failure to comply with the provisions of the Judgment of Dissolution of Marriage entered on 22 October 1997, and the Court's Judgment and Order entered on 
30 September 2002, the court found the FSM's conduct to be willful and that he was in contempt of Court for his failure to provide SBP coverage as required.  However, the Court entered no sanction in this Judgment and Order addressing and remedying such contempt.  Instead the presiding judge certified the matter to the Supreme Court of Missouri so that the Supreme Court could appoint a Special Judge to review the judgment made and Order of Contempt.  The outcome of this is unknown, and the applicant has not provided information on this point.

11.  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.  

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to "Former Spouse Only" coverage under the SBP was carefully considered.  However, while the applicant's argument has logic, it is not the overriding principle in this case.  The clear intent of the governing law is to provide a former spouse an alternative means of gaining SBP coverage once an agreement is entered into and validated by a court if the service member involved fails to comply with the terms of the agreement.  

2.  In this case, it is clear that although the FSM initially agreed to continue SBP coverage on the applicant as the "Former Spouse, it clearly was not his intent to continue to have the applicant as his SBP beneficiary as evidenced by his willful neglect and contempt to provide this coverage after being ordered by the courts on two occasions to provide such for his former spouse. 

3.  Given the SBP coverage election was a matter of contention between the applicant and FSM, as evidenced by the court actions taken, it appears it would have been logical for the applicant to have taken the necessary steps to request a deemed SBP coverage election within one year of the SBP coverage agreement being validated by the courts.  However, the evidence of record confirms neither she nor her attorney attempted to rectify this matter until 
27 March 2001, more than 3 years after the divorce and the FSM's noncompliance with the court order, when a copy of the divorce decree was provided to the DFAS as a substitute for the deemed election.  Moreover, the request must specifically ask for a deemed SBP election as required by the SBP statute; but the 27 March 2001 letter did not cite the SBP.

4.  There are equity considerations that would normally be entertained in this case given the FSM clearly agreed to provide the applicant SBP coverage after their divorce.  However, the evidence of record confirms that the FSM’s current wife is now listed as his lawful beneficiary for SBP benefits.  It is recognized that the divorce decree awarded the SBP to the applicant and specifically ordered the FSM to timely execute all documents necessary to maintain the applicant’s designation as a former spouse SBP beneficiary.  Unfortunately, it appears the FSM did not take the action directed by the court, nor did the applicant make a request for a deemed election of the SBP within one year of their divorce, as required by the SBP statute.  The FSM also remarried and the SBP spouse coverage vested in his current spouse as her property upon the first anniversary of their marriage in October 1998.  


5.  The Board may not divest the FSM's current spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the divorce proceedings of the applicant and the FSM.  That is, the Board cannot take the SBP from the FSM's current spouse without violating her constitutional right to due process of law.  Therefore, this court action would have to include the FSM’s current wife as a party in order to protect her property interest and rights.  If the court after a proceeding determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM’s widow irrevocably renouncing her right to the SBP annuity.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  _x_  _x __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



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          CHAIRPERSON




INDEX

CASE ID
ARAR20060013769
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/17
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1991/10/31
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137
2.

3.

4.

5.

6.