IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080008731 


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, that the records of her former spouse, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that the FSM signed her name on the Data for Payment of Retired Personnel (DD Form 2656) and she did not.  She also states that the FSM signed their divorce decree settlement agreement, which ordered that she be made the beneficiary of his SBP coverage.  

3.  The applicant provides a property settlement (Order for Post-Divorce Division of Property) in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the United States Army and entered active duty on 10 October 1983.  He and the applicant were married on 25 June 1988.

2.  On 6 June 1998, the FSM and the applicant were divorced, after having been married for 9 years, 11 months, and 11 days. 

3.  On 28 November 1998, the FSM remarried.

4.  The FSM retired on 31 October 2004.  At that time, he elected to participate in the SBP for "Child Only" coverage, full gross amount without supplemental SBP.
5.  The applicant provides an Order for Post Divorce Division of Property from the District Court, 146th Judicial District, Bell County, Texas, dated 28 June 2007.  This post service property settlement agreement was approved and incorporated in the final judgment.  Paragraph 7 (Division of Military Benefits) stated in pertinent part, that the applicant should be designated as a former spouse beneficiary of the FSM’s SBP.

6.  The applicant submitted a former spouse deemed election to the Defense Finance and Accounting Service (DFAS) on 3 July 2007. 

7.  During the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) to determine the applicant's entitlement to SBP coverage.  On 30 June 2008, a DFAS official confirmed that the FSM elected “Child Only” SBP coverage at the time of his retirement on 
1 November 2004, excluding spouse coverage.  He further indicated that the applicant submitted a deemed election subsequent to a court order; however, there was no spouse SBP coverage in effect.

8.  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.

9.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

10.  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 requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

11.  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.


12.  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.  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.  By law, divorce courts may 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, and incident to a proceeding of divorce, the former spouse can request a former spouse SBP coverage election be deemed to have been made within one year of the date of a court order of divorce.  

2.  In this case, the FSM and the applicant were divorced on 6 June 1998, and SBP coverage was not included in the original divorce decree and therefore, no deemed election was made within 1 year of the divorce.  Further, on 
28 November 1998, the FSM remarried and even though he had an eligible spouse, he elected "Child Only" coverage when he retired on 31 October 2004. 

3.  The court order directing SBP coverage for the applicant was not issued until 
28 June 2007, and the applicant did not submit a deemed election until 3 July 2007, nearly 10 years after their divorce and subsequent to the FSM's remarriage, and 3 years after the FSM elected "Child Only" SBP coverage at retirement.  As a result, the FSM made an appropriate and valid election of "Child Only" SBP coverage at the time of his retirement even though he had an eligible current spouse who could have been named the SBP beneficiary at that time, and was not participating in spouse SBP coverage at the time of the 2007 court order was issued.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief in this case. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _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)                                         AR20080008731



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ABCMR Record of Proceedings (cont)                                         AR20080008731



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