IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080010612 


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 retired former service member (FSM), be corrected to show that he timely filed a request with the Defense Finance and Accounting Service (DFAS) to change his Survivor Benefit Plan (SBP) coverage from spouse to former spouse in accordance with the Final Decree of Divorce granted by the 27th District Court of Lampasas County, Texas.

2.  The applicant states she and the FSM divorced on 6 April 1994.  The Final Decree of Divorce provided, "...that [FSM] shall not, during his lifetime, provide, modify, amend, withdraw, or in any other manner alter the election to name [applicant] beneficiary of the Armed Services Survivor Benefit Plan."  She adds the FSM continued to pay SBP premiums for 1 year following the divorce, then notified the DFAS of his divorce.  He did not change his SBP coverage from spouse to former spouse and the DFAS refunded his premiums back to the date of his divorce.

3.  The applicant provides:

	a.  A 28 March 1996 letter from Army Retirement Services, Office of The Deputy Chief of Staff for Personnel, Headquarters, Department of the Army, Washington, DC.  This letter denied her request for a deemed election.

	b.  Her undated letter to Army Retirement Services.

	c.  Divorce Decree.

	d.  Letter from Army Board for Correction of Military Records (ABCMR), dated 20 March 2008.

	e.  Copy of DFAS-CL Form 7220/148 (Retiree Account Statement) showing the FSM paid SBP premiums in 1995 and into 1996.

	f.  FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty).

	g.  DA Form 4240 (Data for Payment of Retired Army Personnel) show election of spouse only SBP at a reduced amount of $1,000.00.

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 FSM retired from the Regular Army on 30 April 1989 in the rank of Sergeant Major (SGM) with more than 28 years of active Federal service.  At the time of his retirement, he elected to participate in the SBP for spouse only coverage at the reduced rate of $1,000.00.  He began paying SBP premiums upon his retirement.

3.  The applicant filed for divorce from the FSM on 23 November 1993.  The Final Decree of Divorce provided that the applicant was entitled a portion of the FSM's military retirement annuity and ordered that she receive 40.35% of said annuity.  The court also ordered that the FSM maintain the applicant as beneficiary of his SBP election; that is, he was ordered to change his SBP coverage from "spouse only" to "former spouse."  The divorce was granted on 6 April 1994.

4.  The FSM appealed the terms of the divorce settlement on 12 July 1995 and his appeal was denied on 12 September 1995.

5.  The applicant filed a request with the DFAS for a deemed election changing SBP coverage from spouse only to former spouse.  Her request was denied on 28 March 1996 because it was not timely filed within one year of the date of divorce.  The applicant argued that the one year time limit should have commenced on 12 September 1995, the date the FSM's appeal was denied and the divorce settlement upheld.

6.  Neither the applicant nor the FSM have remarried.

7.  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.  

8.  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.  

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

10.  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.

11.  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.

12.  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.  When the FSM retired, he elected to participate in the SBP for spouse only coverage, reduced base amount.

2.  The FSM and the applicant divorced in April 1994.  The property settlement and separation agreement stated the FSM agreed that he would irrevocably elect and designate the applicant as his SBP beneficiary.  It appears that neither the FSM nor the applicant took the steps required to change his SBP coverage to former spouse coverage within the one-year time period required by law.

3.  The applicant did, within 6 months of the court's final decision denying the FSM's appeal of the divorce settlement, seek to file a deemed election, but was denied because the one year anniversary of the divorce expired on 6 April 1995 and the FSM's appeal was denied on 12 September 1995.

4.  From the chronology of events and actions by the FSM, it appears he did not take action to notify the DFAS of his divorce until one year had already expired, thereby making the applicant's deemed election impossible.

5.  It would be equitable to correct the FSM’s records to show he complied with the property settlement and separation agreement and timely changed his SBP coverage to former spouse coverage.

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 showing that on 1 May 1994 the FSM made a written request to change his SBP coverage to former spouse coverage and that his request was received by the appropriate office and processed in a timely manner.


															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)                                         AR20080010612



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ABCMR Record of Proceedings (cont)                                         AR20080010612



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