IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080016870 


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, establishment of the Survivor Benefit Plan (SBP) former spouse coverage.   

2.  The applicant states, in effect, that at the time of her judgment of divorce, her former spouse, a former service member (FSM), agreed to former spouse coverage for SBP.  She also states, in effect, in January 2007, she appealed the marital property division in the judgment.  In May 2008, she was advised that her name was not the one listed as the former spouse beneficiary and it was recommended she petition the Army Board for Correction of Military Records (ABCMR) for reinstatement of the SBP.  She also states, in effect, that the State of Missouri and the U.S. Army both claim that she was married until the appeal process was exhausted.  The fact that she lost her appeal still does not change the fact that she was considered married until 15 April 2008.  By cancelling her SBP coverage, she is being punished for filing the appeals, which was her right in the United States Courts.  Just as the Army would not allow her to use the judgment during the appeal to start her direct deposit of her portion of retired pay, the Army could not expect the use of the judgment to start the SBP former spouse coverage.

3.  In support of her application, the applicant provides copies of her outline of the timeline of events; their Certificate of Marriage; the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty); their Judgment of Dissolution of Marriage; her letter from the Defense Finance and Accounting 


Service (DFAS), Garnishment Operations, Cleveland, Ohio, and her response 
with a copy of her Notice of Appeal; her letter from the Missouri Court of Appeals, Kansas City, Missouri; her letter from the Assistant Retirement Services Officer, Fort Leavenworth, Kansas; her attorney's letter to the Assistant Retirement Services Officer, Fort Leavenworth; a list of her appeal dockets; her attorney's letters to DFAS, Garnishment Operations; a letter from DFAS, Retired and Annuity Pay; her Supreme Court of Missouri Notice of Application for Transfer; the FSM's 2007 DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage); her DD Form 2293 (Application for Former Spouse Payments from Retired Pay); her 2008 letter from DFAS, Garnishment Operations, her responses, and her W-4P (Withholding Certificate for Pension or Annuity Payments). 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 18 March 1961.  His military records show he enlisted in the Regular Army (RA) on 19 April 1983.  

2.  The applicant submits a copy of their Certificate of Marriage that shows she was married to the FSM on 5 April 1988.  

3.  The applicant also submits a copy of her Judgment of Dissolution of Marriage that was filed on 30 November 2006.  The judgment for divorce shows the FSM agreed, in effect, to provide his now former spouse an annuity under SBP. 

4.  The FSM was honorably released from active duty for the purpose of retirement on 31 August 2006.  He was credited with over 23 years of active Federal service and was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He apparently elected spouse coverage under the SBP at that time.

5.  On 3 January 2007, the DFAS, Garnishment Operations, Cleveland, advised the applicant, in effect, that her application for payment of a portion of the FSM's retired/retained pay could not be processed.  She was also advised to complete an enclosed DD Form 2293.  If her divorce decree specified that she was to be designated as the former spouse beneficiary for the SBP, she was advised she must make a "deemed election" for SBP coverage within one year of the date of her divorce directly to the Retired Pay office.



6.  On 10 January 2007, the applicant was granted an appeal of the dissolution of the marriage.  On 1 February 2007, the applicant notified DFAS, Garnishment Operations, Cleveland, of the appeal. 

7.  On 26 November 2007, the FSM completed a DD Form 2656-1, wherein he elected to change his SBP coverage to former spouse and children due to their divorce decree.

8.  On 30 November 2007, the Assistant Retirement Services Officer, Fort Leavenworth, KS, advised the applicant that the FSM had initiated the process to convert his spousal coverage SBP to former spouse coverage SBP by order of a divorce decree.

9.  On 6 December 2007, the applicant's attorney advised the Assistant Retirement Services Officer, Fort Leavenworth, that she and the FSM were not divorced because the trial judge's decision had been appealed and was currently pending in the Missouri Court of Appeals.  Because the matter was on appeal, there was no final judgment dissolving their marriage.

10.  On 16 January 2008, DFAS, Retired and Annuity Pay Branch, advised the applicant's attorney that their records did not indicate the FSM had requested to terminate coverage for his former spouse and coverage would continue until a final decree was issued.

11.  On 15 April 2008, the court upheld the original circuit court's decision and the applicant and FSM's dissolution of marriage became final.  On 5 May 2008, she submitted a DD Form 2565-1 for a "deemed election" for former spouse coverage SBP.  

12.  On 7 May 2008, the DFAS, Garnishment Operations, Cleveland, advised the applicant, in effect, that she had 30 days to provide information regarding the status of her court orders and W-4P.  She was also advised that she must make a "deemed election" directly to the Retired Pay office at DFAS.  She submitted her W-4P on 14 May 2008.

13.  On 10 January 2009, the Army Liaison to DFAS verified that the FSM had elected SBP spousal coverage and that premiums were currently being taken from his military retired pay.

14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  

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

17.  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.

18.  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 evidence of record shows the FSM and his former spouse, the applicant, were married on 5 April 1988.  The FSM and the applicant filed a petition for dissolution of their marriage on 30 August 2006.  The FSM was honorably released from active duty for the purpose of retirement on 31 August 2006 and was transferred to USAR Control Group (Retired).  

2.  The 30 November 2006 judgment for divorce shows the FSM agreed, in effect, to provide his now former spouse an annuity under SBP.  It appears DFAS is using 30 November 2006 to calculate the one-year window of opportunity for providing former spouse SBP coverage.

3.  However, on 10 January 2007 the applicant appealed the marital property division in the judgment for divorce.  On 15 April 2008, the court upheld the circuit court's decision and the applicant and FSM's judgment for divorce became final.  On 5 May 2008, she submitted a DD Form 2565-1 for a "deemed election" for former spouse coverage SBP.  It appears DFAS rejected her request as outside of the one-year window of opportunity.
4.  Based upon the SBP award in the judgment for divorce and the date that judgment became final, the applicant properly submitted a deemed election within 1 year of the divorce in accordance with the governing law.  It appears she is therefore entitled to SBP former spouse coverage as a matter of law.  In any case, as a matter of equity the applicant is entitled to SBP former spouse coverage.  Since DFAS is basing its decision to deny the applicant the requested relief because she did not submit a request for a deemed election by November 2007, it would be appropriate to correct the records to show that she submitted a request for a deemed election by November 2007.

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 showing that the applicant properly submitted a deemed former spouse SBP election within one year from 30 November 2006, with establishment of the applicant as the former spouse beneficiary of the former service member's Survivor Benefit Plan coverage.



      __________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)                                         AR20080016870



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ABCMR Record of Proceedings (cont)                                         AR20080016870



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