IN THE CASE OF:	  

		BOARD DATE:	       6 November 2008

		DOCKET NUMBER:  AR20080006798 


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, in effect, correction of her former husband's military records to show that she submitted a deemed election for Survivor Benefit Plan (SBP) within one year of their divorce.

2.  The applicant states, in effect, that she has complied with all requirements but still has not been made a beneficiary for her former husband's SBP.  

3.  The applicant provides, in support of her application, copies of her divorce decree (last page only); Application for Former Spouse Payments from Retired Pay (DD Form 2293); Letter from the Defense Finance and Accounting Service (DFAS), dated 4 September 2002; Letter from her counsel to DFAS, dated
12 August 2002; SBP Election (back side only of DA Form 2656); and Retiree Account Statement (DFAS-CL 7220), effective 24 November 2004.

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.  On 11 June 1990, the applicant's then husband, a sergeant first class (SFC), pay grade E-7 and a member of the California Army National Guard (CAARNG), was notified by letter of his eligibility for retired pay at age 60.  This letter indicates that an SBP summary was attached, but there is no evidence of record to show he made a Reserve Component SBP (RCSBP) election. 

3.  Orders 90-1, CAARNG, dated 31 March 1999, promoted the applicant's then husband to master sergeant, pay grade E-8 effective 19 February 1999.

4.  The applicant and her former husband were divorced on 28 June 2002.  The available portion of the applicant's divorce decree shows that she is entitled to former spouse coverage under the SBP and is responsible for the premium.

5.  On 9 August 2002, the applicant submitted a DD Form 2293 to DFAS requesting 26.2 percent of her former husband's retired pay.  The form indicates that she attached a copy of the operative court order that provided for this payment.

6.  On 12 August 2002, the applicant's counsel submitted a letter of notification to DFAS informing that office of the applicant's divorce on 28 June 2002, and her desire to remain the beneficiary for the SBP, and to pay the premium from her portion of the retired pay.

7.  On 4 September 2002, DFAS responded to the applicant's request for a portion of her husband's pay, stating that the retiree had 30 days to respond before payment to her could commence.  DFAS also informed her that if, in accordance with the divorce decree she was eligible to be designated as a former spouse beneficiary for the SBP, then she had to make a "deemed election" within one year of the date of her divorce. 

8.  On 13 July 2004, the applicant's former husband became 60 years of age and submitted a DD Form 2656 electing not to participate in the SBP stating that he had no eligible dependents.

9.  DFAS-CL 7220, effective 24 November 2004, shows that the former husband was receiving retired pay and that the applicant was receiving a portion of that pay in accordance with the divorce decree.  It also reflected that the retiree had not made any SBP election.

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 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If the member dies before reaching age 60, premiums are deducted from the annuity.

12.  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, including Reservists.

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 member was participating in the SBP 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 available records clearly shows that on 4 September 2002, DFAS knew that the applicant was entitled by court order to a portion of the retired service member's retired pay and notified her of the requirement to submit a "deemed election" for SBP within one year.  However, on 12 August 2002, her counsel had already notified DFAS of her desire to make a deemed election.

2.  On 13 July 2004, when the applicant became 60 years of age, he elected not to comply with the court order and declared that he had no one eligible under the SBP.

3.  In view of the above, it would be appropriate to correct the records to show that the applicant made an SBP election on 12 August 2002, for former spouse coverage and to pay the premium from her portion of the retiree's pay.

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 that the applicant had made a deemed election for former spouse coverage on 12 August 2002 and agreed to pay the premiums from her portion of the retired pay; and

   b.  showing that DFAS timely received and appropriately processed the applicant's request for a deemed election.



      _________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)                                         AR20080006798



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ABCMR Record of Proceedings (cont)                                         AR20080006798


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