IN THE CASE OF:	  

		BOARD DATE:	  	 18 December 2008

		DOCKET NUMBER:  AR20080015373 


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 to participate in the Survivor Benefit Plan (SBP) with former spouse coverage.

2.  The applicant states, in effect, that the FSM was ordered in their original Decree of Divorce to designate her as a "former spouse" beneficiary under the SBP; however, the FSM failed to do so.

3.  The applicant provides copies of State of Maryland, Harford County, License Number 84##, dated 23 July 1976; District Court, 288th Judicial District, Bexar County, Texas, Final Decree of Divorce, Number 98-CI-09###, dated
16 November 1999; and District Court, 288th Judicial District, Bexar County, Texas, Motion for Enforcement and Clarification of Prior Order, Number 
1998-CI-09###, dated16 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.  The FSM’s military service records show he was appointed a commissioned officer in the U.S. Army Reserve on 25 March 1972 and entered active duty on
2 January 1976.  The FSM and applicant married on 19 July 1976.

3.  On 16 November 1999, the District Court, 288th Judicial District, Bexar County, Texas, ordered and decreed that the marriage between the applicant and FSM was dissolved.  At that time, the court found that there was no child of the marriage and that none were expected.  This document shows, in pertinent part, that the Court "…ordered and decreed that [FSM] be and is hereby ordered to elect to designate [applicant] as a 'former spouse beneficiary' of [FSM's] Survivor Benefit Plan, hereinafter referred to as SBP.  It is further ordered and decreed that, pursuant to this Order, [applicant] be and is hereby deemed designated, to the extent permitted by law, as a 'former spouse beneficiary' of [FSM's] SBP.  To the extent that [FSM] fails or otherwise refuses to cooperate in filing the requisite documents necessary to elect to designate [applicant] as a 'former spouse beneficiary' of [FSM's] SBP, [applicant] be and is hereby directed to apply for [applicant's] entitlement to be deemed a 'former spouse beneficiary' of [FSM's] Armed Forces SBP by contacting the DFAS Legal Department, notifying it of this Court's deemed election pursuant to 10 U.S.C., 1447, et seq., along with a certified copy of this Order to:  DFAS-CLILF, Assistant General Counsel, P.O. Box 998002, Cleveland, Ohio  44199-8002 by certified mail."

4.  On 12 December 2003, the FSM completed a DA Form 2656 (Data for Payment of Retired Personnel).  Section VI (Federal Income Tax Withholding Information), Item 14 (Marital Status), shows the FSM was married.  Section VIII (Dependency Information) shows the FSM indicated that he married Hannah L. C______, on 12 June 2000, at Frederick, Maryland, and that he had a daughter.  Section IX (Survivor Benefit Plan (SBP) Election) shows the FSM elected spouse and child(ren) coverage based on the full amount of his retired pay.  The FSM and counselor (witness) each affixed their signatures in Section VII (Certification) of the DA Form 2656.  In addition, Section XII of the DA Form 2656 shows that the FSM had been counseled on the benefits afforded under SBP.  Since the 


FSM did not elect an annuity based on a reduced portion of his retired pay or decline coverage for his spouse, Section XI (SBP Spouse Concurrence) was not required to be completed by the spouse.

5.  The FSM retired from the Army, effective 1 February 2004, after serving honorably on active duty for a total of 28 years and 29 days. 

6.  On 16 November 2004, at District Court, 288th Judicial District, Bexar County, Texas, the applicant filed a Motion for Enforcement and Clarification of Prior Order.  This document states, in pertinent part, "[p]ursuant to the terms of the parties' divorce decree, as agreed by the parties, [FSM] was ordered to and agreed to elect to designate [applicant] as a former spouse beneficiary of his Survivor Benefit Plan (SBP).  Although ordered to and contractually agreeing to do so, [FSM] did not and upon his retirement, upon information and belief, designated his current spouse, as his SBP beneficiary.  His breach of his agreement and his violation of this Court's order in this regard was done willfully and knowingly."  This document also states, in pertinent part, "[u]pon learning of [FSM's] retirement, [applicant] submitted the referenced decree agreement so that she might receive direct payment from the Defense Finance and Accounting Service of her interest in said military retired pay pursuant to the Uniformed Services Former Spouse Protection Act (USFSPA), 10 U.S.C. 1408 [Title 10, U.S. Code, section 1408], et seq., that is, her separate property percentage of [FSM’s] gross retired pay."

7.  There is no evidence of record to show that the FSM took any action to notify the Defense Finance and Accounting Service (DFAS) or request a change pertaining to the category of his SBP election to former spouse coverage within one year of the divorce decree being issued, as is required by law.

8.  There is no evidence of record to show that the applicant made a written request of deemed election to DFAS for former spouse SBP coverage based on the divorce decree within one year of the date of the court order or filing involved.

9.  The applicant provides documentation that shows, in pertinent part, she was married to the FSM for most of his 28-year military career, the marriage lasted for nearly 23 years, and she was to be designated as the beneficiary of the FSM's SBP.

10.  Public Law 92-425, the Survivor Benefit Plan, 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.  Retiring members and spouses were to be informed of the SBP options and effects.

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.  Title 10, U.S. Code, Chapter 73, provides that a 
spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

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.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-3 of this Army regulation provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member has one year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce.

2.  The evidence of record indicates that the FSM never notified DFAS officials to change his SBP election to former spouse coverage within 1 year of the divorce.  
In addition, the FSM's retired pay record maintained by the DFAS fails to show 

that the applicant made a “deemed election” within 1 year of the date of the court order or filing.  Thus, the evidence of record fails to show that either the FSM or the applicant took the necessary action to change the FSM’s SBP election from spouse to former spouse coverage within 1 year of the divorce.

3.  The evidence of record shows that, upon retirement from the Army, the FSM elected spouse and child coverage, named his (current) spouse and daughter as his designated SBP beneficiaries, and SBP premiums are being deducted from the FSM's retired pay.

4.  The evidence of record indicates the applicant notified the DFAS subsequent to the FSM’s retirement (i.e., sometime after 31 January 2004) of her interest in the FSM’s military retired pay.  However, this notice was well after the one-year period of their divorce and did not satisfy the strict requirement for former spouse SBP entitlement by deemed election.  More importantly, by this time the FSM's new spouse had a vested interest in SBP.

5.  The evidence of record shows that the FSM remarried on 12 June 2000.  Consequently, when the FSM remarried, the second spouse became eligible for the spouse SBP coverage, as SBP coverage is governed by category.  At the one-year anniversary of their marriage, the FSM's spouse acquired a vested interest in the SBP as the FSM's legal beneficiary.  Therefore, absent a notarized statement from the FSM's current spouse asserting that she relinquishes any claim to the applicant's SBP annuity in perpetuity in favor of the applicant, or a court order from a court with proper jurisdiction over the FSM’s spouse directing the government to pay the SBP annuity to the applicant and not the spouse, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  Therefore, in view of the foregoing, relief cannot be granted in this case, at this time.

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)                                         AR20080015373



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ABCMR Record of Proceedings (cont)                                         AR20080015373



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