IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080018395 


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 husband, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with their divorce. 

2.  The applicant states, in effect, that although her attorney (counsel) sent her SBP paperwork to the incorrect office, the FSM’s SBP election should reflect she is the authorized beneficiary as his former spouse, which is consistent with the FSM's election intent and with property settlement they agreed to, which was incorporated into their divorce decree.  She indicates that she was the FSM’s teammate throughout his entire military career and was always available to assist the Army community as a volunteer.  She also claims the FSM elected SBP coverage for her upon his retirement because she did not have a career of her own.  She also indicates that she continues to see the FSM, who is critically ill with Amyotrophic Lateral Sclerosis (ALS) rendering him 100 percent (%) disabled.  She also takes care of his 86 year old mother.  She affirms that the FSM believed her counsel had complied with the terms of their divorce decree and submitted the necessary paperwork to allow her to remain his SBP beneficiary as his former spouse, and that this is still the FSM’s intent today.

3.  The applicant provides the 14 documents identified on the index included with her application in support of her request.


CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the United States Army on 2 March 1974 and continuously served on active duty until he was honorably released from active duty (REFRAD) for the purpose of retirement on 28 February 1995.  At the time, he had completed a total of 20 years, 11 months, and 29 days of active military service.

2.  The FSM’s Official Military Personnel File (OMPF) contains pages 3 and 4 of a DA Form 2656 (Data for Payment of Retired Personnel).  This document was completed on 1 December 1994, and it shows that the applicant made an election to participate in the SBP for “spouse and children” coverage.

3.  The FSM and the applicant were married on 1 May 1976, and were divorced on 16 July 2007.

4.  On 29 June 2007, the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida issued a Marital Settlement Agreement.  Paragraph 1 of Page 7 of this document confirms the statement “Husband agrees to continue to elect coverage under the Survivor Benefit Plan (the “SBP”), and designate Wife as the sole beneficiary there under.”  Both the applicant and the FSM authenticated this document with their signatures on 29 June 2007.

5.  On 16 July 2007, the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida issued a Final Judgment of Dissolution of Marriage (divorce decree).  This document shows in Paragraph I of Page 5 that the FSM agreed to continue to maintain his wife (the applicant) as the sole beneficiary under the SBP.

6.  The applicant provides a copy of her counsel’s 18 July 2007 letter to the Defense Finance and Accounting Service (DFAS), Assistant General Counsel for Garnishment Operations, Cleveland, which requested the applicant receive former spouse payments of retired pay.  It shows that a copy of the applicant’s and FSM’s Final Judgment and Marital Settlement Agreement were also provided to DFAS.  She also provides a Domestic Return Receipt (PS Form 3811), which shows a DFAS official signed for receipt of this letter on 24 July 2007.  She also provides a letter from the FSM, dated 1 October 2008, in which he confirms that it was and is his intent that his former spouse (the applicant) continue to be the beneficiary of his SBP, and a letter from her counsel, dated
6 October 200, in which he indicates that a copy of the applicant’s Final Judgment was sent to DFAS in order that she receive her portion of the FSM’s military retirement benefits and to ensure that she would be listed as beneficiary of the SBP benefits.  

7.  The applicant provides two statements from Department of Veterans Affairs (VA) doctors that confirm the FSM’s diagnosis of ALS, also known as Lou Gehrig’s disease, a condition that causes weakness or paralysis in both arms and legs, problems with speech, swallowing, and breathing.  On 27 February 2008, a recommendation was made to allow the FSM the use of a power wheelchair for all of his mobility needs, use augmentative communication devices, and adaptive devices for his hand, and that he not be allowed to do any lifting or carrying.  He also provides a Retiree Account Statement, dated 
7 October 2008, which shows a premium was deducted from the FSM’s retired pay for SBP “spouse only” coverage.  It also shows that he had paid 162 months coverage at that time.

8.  During the processing of this case, a staff member of the Board contacted DFAS to determine if a request was made to change the FSM’s initial election of SBP coverage from spouse to former spouse.  A DFAS official confirmed the retired FSM’s election for “spouse” coverage was still in force and that no documentation had been received to change this election.  

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

10.  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, incident to a proceeding of divorce, a member with existing SBP coverage 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 one year of the date of a court order of divorce.

2.  The evidence of record confirms the FSM initially elected SBP coverage for “spouse and children” at the time of his retirement.  Premiums are still being deducted from the FSM’s retired pay.  Subsequently, the FSM and his former spouse (the applicant) were divorced on 16 July 2007.  Both parties agreed to comply with the terms of the Marital Settlement Agreement, which included continued SBP coverage for the applicant as the former spouse and this was incorporated into the final divorce decree. 

3.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for more than 19 years of his military career.  The court awarded the applicant the SBP beneficiary status in the Marriage Settlement Agreement entered into by her and the retired FSM on 29 June 2007, which was incorporated into the Final Judgment of Dissolution of Marriage (divorce decree).  

4.  The applicant provides sufficient evidence to show that her counsel, within days of its issuance, provided a copy of the final divorce decree to DFAS, for issuance of former spouse payments of retired pay, which counsel believed would also suffice to ensure the FSM’s SBP coverage was changed to former spouse coverage and apparently did not realize that a separate deemed election written request was required.  Nevertheless, the divorce decree did direct that the applicant be continued as the sole beneficiary of the FSM’s SBP and both the FSM and the applicant agreed to its terms when they authenticated the Marital Settlement Agreement with their signatures.

5.  Further, the FSM once again reinforced his intent that the applicant be designated his SBP beneficiary as his former spouse in his 1 October 2008 letter to this Board.  In addition, the FSM has continuously paid SBP premiums since the divorce, which indicates he believed the SBP former spouse election had been made.  In view of the facts of this case, it would be appropriate and serve the interest of justice to correct the FSM‘s record to show he elected former spouse SBP coverage in conjunction with his divorce from the applicant.  


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 the FSM elected former spouse SBP coverage in conjunction with his divorce from the applicant and that the applicant is now the designated former spouse SBP beneficiary.




      _______ _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)                                         AR20080018395



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ABCMR Record of Proceedings (cont)                                         AR20080018395


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