IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080004219 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the records of her former spouse, a former service member (FSM), be corrected to show she correctly filed a deemed election for former spouse coverage of his Survivor Benefit Plan (SBP).

2.  The applicant states that when she and the FSM were divorced, the divorce decree indicated that the FSM would name her as the beneficiary under the SBP. She further adds that she did not know what a "deemed election" means and was unaware she had to make this election within one year of the divorce.  She concludes that she assumed since she was married and had been a beneficiary throughout her 37 years of marriage to the FSM, that her benefits would continue. 

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Final Divorce Decree and Order, dated 20 October 2006.

	b.  Self-authored letter, dated 10 May 2008.

	c.  Marriage Certificate, dated 23 January 1970.

	d.  Defense Finance and Accounting Service (DFAS), Garnishment Operations, Cleveland, Ohio, letter, dated 6 February 2008, regarding her entitlement to the FSM's retired pay.

4.  On 18 June 2008, the applicant submitted a copy of an electronic mail (email) statement from the FSM declaring that he is unmarried.  The statement is neither signed nor notarized.

5.  On 22 June 2008, the applicant submitted an affidavit, signed and notarized by the FSM, certifying that he did not remarry after his divorce from the applicant and remains unmarried today.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show that he was born on 1 December 1946 and enlisted in the Regular Army on 3 July 1967.  He subsequently executed a series of reenlistments and/or extensions in the Regular Army and was placed on the retired list in his retired rank/grade of master sergeant (MSG)/E-8 on 30 September 1988.  He was credited with 21 years and 2 months of total active service.

2.  The FSM’s records show he married his spouse Brenda, the applicant, on 23 January 1970. 

3.  The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 22 August 1988, indicates that at the time of his retirement, he elected full SBP coverage for spouse and dependent children.  He was still married to Brenda.

4.  On 20 October 2006, the applicant and the FSM were divorced.  The Divorce Decree ordered the FSM to affect the division of the retired pay.  The Decree further ordered that the FSM "shall maintain the wife as beneficiary on the Survivor Benefit Plan (SBP) and that the costs of the premiums shall be taken in pre-taxable income and otherwise be in conformance with Department of Defense regulations." 

5.  There is no indication that the FSM informed DFAS of his divorce.  However, records show that he continued to pay SBP premiums. 

6.  On 6 February 2008, by letter, the Garnishment Operations Branch, DFAS-Cleveland, Ohio, notified the applicant that payment of a portion of the FSM's retired pay would commence in March 2008, after certain conditions were met.  This letter further notified the applicant that if her divorce decree specified that she were to be designated as a former spouse beneficiary for the SBP, she must make a "deemed election" for SBP coverage within one year of the date of the divorce.

7.  There is no indication that the FSM made an election to change SBP coverage from “spouse” to “former spouse” within one year of the date of the divorce.  Furthermore, there is no indication that the applicant made a deemed election to the DFAS Retired Pay Office within one year of her divorce.  

8.  The applicant submitted an affidavit, dated 18 June 2008, signed by the FSM and notarized, declaring that he did not remarry after his divorce from the applicant and remains unmarried today.

9.  In her self-authored letter, dated 10 May 2008, the applicant states that she did not know she had to make a deemed election within one year of the date of the divorce.  She further adds that she assumed since the FSM was the military person and since he was ordered by the Court to affect the changes, that he would do so.  She concludes that during her 37 years of marriage, she raised the children and supported the FSM in his military career, and appeals to the Board to grant her request.

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.  Elections are made by category, not by name.

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.

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

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) 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.

14.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  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.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

15.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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 elected, at the time of his retirement, to participate in the SBP for spouse and children coverage.  He and the applicant were divorced on 20 October 2006.  The FSM agreed to continue to provide his former spouse with an SBP benefit, as recorded in their judgment of divorce and continued to make the premium payments.  

2.  The FSM had one year from the date of divorce to change his SBP coverage to former spouse coverage.  He did not do so, and the applicant did not make a request for a deemed election of the SBP for former spouse coverage within one year of the divorce as required by law.  She was married to the FSM for about
37 years, and about 17 of those years were during the FSM's military career.  Furthermore, the FSM did not remarry after his divorce from the applicant.

3.  In view of the foregoing evidence and since the FSM did not remarry after his divorce, but continued to make premium payments, there is sufficient evidence to suggest that he intended to elect his former spouse to receive the SBP benefit.  Therefore, in the interest of justice, it would be equitable to correct the records to show the applicant made a request for a deemed election for former spouse beneficiary in a timely manner.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 request for a deemed election for former spouse beneficiary within one year of her divorce to the FSM on 20 October 2006; and that DFAS affected the change; and 

	b.  advising the applicant that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due, as a result of this correction.



							XXX
       _    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080004219





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