IN THE CASE OF:	 

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080006379 


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 his election under the Survivor Benefit Plan (SBP) be changed to full amount for former spouse instead of full amount for spouse only.

2.  The applicant states he was divorced in 1995 while he was still on active duty and his divorce decree stipulated that his former spouse could select SBP benefits if she wanted to pay for it.  He further states his former spouse did not make a deemed election within 1 year of the divorce.  He further states that he agreed to make the election for former spouse at the time he retired; however, payment of the premium would be her responsibility.  

3.  The applicant states that prior to his retirement in 2003 he attempted to contact his former spouse, through their respective attorneys, to determine if she wanted to participate in the SBP.  He states his former spouse did not contact his attorney until after he had processed out of the Army on transition leave, but prior to his effective date of retirement.  He further states he was informed that once an SBP election has been made, it can not be changed.  He states that because his former spouse failed to make a deemed election and failed to contact him prior to him processing out of the Army full SBP for his current spouse automatically took effect on his date of retirement.

4.  The applicant states the El Paso County Court ordered a DD Form 2652-1 (Survivor Benefit Plan Election Statement) for former spouse coverage in SBP be sent to the Defense Finance and Accounting Services (DFAS) .  He further stated 

that the DFAS denied the change in election because it was not filed within
1 year of the divorce.

5.  The applicant further states the El Paso County Court directed the submission of an application for correction of his records and directed the Clerk of the Court sign the application on behalf of the applicant.  

6.  The applicant states his former spouse failed to make an SBP deemed election within 1 year of their divorce and failed to notify him in a timely manner prior to his retirement from the Army if she wanted the SBP election.  He further states he believes he took all prudent action required to provide his former spouse SBP and asks that the Board determine if there is any error or injustice.

7.  The applicant provides, in support of his application, copies of his divorce decree, his separation agreement, a draft of a letter to his former spouse; a letter of communication between the attorneys for the applicant and his former spouse; a communication between the applicant and the DFAS; a DD Form 2658-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage); a Supplemental Sheet to the DD Form 149 (Application for Correction of Military Record) submitted by the El Paso County Court; and Case No. 94 DR 2012, District Court, El Paso County, Colorado.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he had 7 years, 6 months, and 28 days of prior enlisted service.  On 1 April 1973, he was appointed a warrant officer one in the U.S. Army Reserve and ordered to active duty.  
On 19 June 1987, he was commissioned a chief warrant officer three in the Regular Army where he continued to serve until his retirement.

3.  On 18 June 1966, the applicant and his former spouse were married in Wuerzberg, Germany.

4.  On 12 March 1992, the applicant and his former spouse signed a Separation Agreement.  In this agreement the applicant agreed to initiate SBP with his former spouse as beneficiary in the base amount to be selected by her upon his retirement from the Army.  The agreement also stipulated the costs of the SBP would be paid by the former spouse by a reduction in the amount of the disposable retired pay she would be entitled to upon his retirement from the Army.

5.  A Supplemental Separation Agreement was signed by the applicant on
28 July 1995 and his former spouse on 9 August 1995.  This supplemental agreement stipulated the cost of the SBP would be subtracted from his former spouse's share of his retired pay to determine her net entitlement.

6.  On 14 August 1995, the applicant and his former spouse were divorced (Attachment 4 to DD Form 149 dated 21 March 2008).

7.  On 28 September 1995, the applicant married his current spouse.

8.  A draft letter, dated 7 March 2003, from the applicant's attorney to the former spouse requested that she contact the attorney by 30 April 2003 and indicate whether she desired to participate in the SBP (Enclosure 2 to DD Form 149 dated 29 May 2008).

9.  A facsimile, dated 1 May 2003, between the attorneys indicates that the former spouse's attorney had advised that the applicant "hold off" on making an election on the SBP (Enclosure 3 to DD Form 149 dated 29 May 2008).

10.  On 16 May 2003, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  In Section IX (Survivor Benefit Plan Election), Item 26 (Beneficiary Category(ies) he elected Item 26a, coverage for spouse only and indicated he did not have dependent children.  He also elected in Item 27a coverage to be based on full gross pay without supplemental SBP (Attachment 1 to DD Form 149, dated 21 March 2003).

11.  Although the date the applicant started his transition leave is unavailable, he stated that his former spouse indicated she did want full SBP benefits prior to the effective date of his retirement.  The applicant stated that he was told he could not change his election because his election form had already been filed.

12.  On 31 May 2003, the applicant was released from active duty and placed on the Retired List effective 1 June 2003 (the date he became entitled to retired pay).

13.  On 10 January 2008, the El Paso County Court issued an order joining the applicant's current spouse as a third-party respondent and indicated she had 
30 days to show cause why the applicant's SBP benefits should not be awarded to the applicant's former spouse (Attachment 3 to DD Form 149 dated 21 March 2008).

14.  On 21 March 2008, the applicant completed and signed a DD Form 149 requesting correction of his records to show he elected SBP for his former spouse.  On 24 March 2008, the El Paso County Court appointed the Clerk of the Court as agent for the applicant and ordered that the Clerk execute an application for correction of military records to obtain maximum SBP benefits as ordered by the court in their divorce.  The 21 March 2008 DD 149, signed by the applicant, was submitted by the Clerk of the Court with 10 attachments.

15.  On 29 May 2008, the applicant submitted a follow-on DD Form 149, with six enclosures, under his own signature, requesting correction of his SBP election to former spouse instead of spouse only coverage.

16.  The applicant submitted additional DD Forms 149 on 12 June 2008, with 
3 exhibits; and 29 July 2008 to comply with orders issued by the El Paso County Court.

17.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

18.  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.

19.  Title 10, U. S. Code (USC), Section 1448(b)(3) provides for 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.
20.  Title 10, USC, Section 1448(a)(3)(E) provides for notice to spouse of election to provide former spouse annuity.  If a married person who is eligible to provide a standard annuity elects to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2), that person's spouse shall be notified of that election.

21.  Title 10, USC, section 1448(a)(4)(A) provides that an election under SBP is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.

22.  Title 10, USC, Section 1450 (under Public Law 98-525, 19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

	a.  a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and

	b.  a copy of court order or other official statement, either: 

	(1)  copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or

	(2)  a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his election under the SBP should be changed to full amount for former spouse instead of full amount for spouse only.  He contends  that because his former spouse failed to make a deemed election and failed to contact him prior to him processing out of the Army full SBP for his current spouse automatically took effect on his date of retirement.

2.  Title 10 USC, Section 1450 provides that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election the former spouse must request within one year of the date of the court order or filing involved that such an election be deemed to have 
been made.  However, in this case the applicant did not fail or refuse to make the election for former spouse benefits until 31 May 2003, 8 years after his divorce.  Therefore, the provisions of deemed election do not apply in this case.

3.  The applicant was aware of the requirement for him to provide full SBP benefits prior to his retirement.  This is evidenced by his statements and the letter between the attorneys.  He executed a DD Form 2656 on 16 May 2003, electing full coverage for spouse only.  The applicant was misinformed when he was told he could not change this election after he started his separation leave but before his effective date of retirement.  According to Title 10 USC Section 1448, an individual's SBP becomes irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.  Therefore, the applicant could have changed his SBP election at any time before 1 June 2003.

4.  The El Paso County Court joined the applicant's current spouse as a third party and gave her 30 days to show cause as to why the applicant's former spouse should not be awarded full benefits under SBP.  There is no record of a response provided by the applicant's current spouse.  Therefore, the applicant's current spouse's right to due process was provided.

5.  The applicant's intention to be in compliance with the court orders to provide full SBP benefits for his former spouse is clear.  Therefore, in the interest of justice it is appropriate to change his DD Form 2656 to show he elected SBP coverage for his former spouse to be based on the full gross pay without supplemental SBP. 

6.  DFAS deducts the premiums for SBP from the retiree's retirement pay.  The Board does not have jurisdiction over how DFAS makes deductions from military or retired pay.  Therefore, any discrepancies concerning which party provides for the cost of the SBP is to be settled between the applicant and his former spouse. 

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 individual concerned be corrected by: 

   a.  showing the applicant elected under Item 26e of his DD Form 2656, dated 16 May 2003, the statement, "I elect coverage for my former spouse"; and

	b.  showing that the applicant's request was received and processed by DFAS in a timely manner.



      __________X____________
               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)                                         AR20080006379



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ABCMR Record of Proceedings (cont)                                         AR20080006379



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