IN THE CASE OF:	  

		BOARD DATE:	        21 May 2009

		DOCKET NUMBER:  AR20090000971 


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 reconsideration of her earlier request to correct the former service member's (FSM's) military records so that her court-ordered former spouse Survivor Benefit Plan (SBP) coverage will be accepted.

2.  The applicant states, in effect, that the court system of Raleigh County in Beckley, West Virginia has ordered her ex-husband to sign the SBP papers.  The court order also requests the Department of the Army effectuate the applicant as the former spouse SBP beneficiary if the FSM refuses to comply with the court order.     

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070006048, on 6 November 2007.

2.  The applicant provides a copy of the Civil Action Order, dated 31 October 2008, which is new evidence that should be considered by the Board.

3.  The applicant argues that the FSM has not remarried and is still obligated to maintain SBP coverage for her.  

4.  As stated in the original ABCMR proceedings, Section IX (Survivor Benefit Plan Election) of the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 26 March 2003, shows he elected spouse coverage, full base amount.  The original proceedings also stated that the Qualified Domestic Relations Order states, in part, "The Member agrees to elect to make the Former Spouse (and such Former Spouse shall be deemed the irrevocable beneficiary of the survivor’s Survivor Benefit Plan (“SBP”) Annuity through Member’s military retirement and member shall execute such paperwork, as is required to make or extend the election of Former Spouse as said beneficiary.  Member shall elect the Former Spouse-Only option and shall select as the base amount the full amount of his monthly retired pay.”

5.  The FSM married the applicant on 23 June 1973.  The FSM enlisted in the Regular Army on 29 April 1981.  

6.  The FSM retired from active duty on 1 June 2003 in the rank of lieutenant colonel.  At that time, he elected to participate in the SBP for spouse coverage.

7.  The FSM divorced the applicant on 9 April 2004.

8.  The Civil Action Order, dated 31 October 2008, states in part, that the FSM represented on 16 May 2008 that he was not currently married and that he could not name the applicant as the beneficiary on his SBP as previously ordered by the Court due to the fact that it was not done within one year of the divorce.  Upon review, the Court finds that the Final Order of Divorce between the parties was entered on 9 April 2004.  Pursuant to the Divorce Decree, a Qualified Domestic Relations Order was not entered by the Court until 8 April 2005.  Thereafter various hearings and appeals were taken in this matter which has prevented the applicant from being properly established as the beneficiary of the SBP of the FSM.  During the proceedings on 16 May 2008, the respondent testified under oath that he attempted to place the applicant on the SBP but was unable to because of the expiration of 1 year from the date the divorce; therefore, the FSM requested that he be relieved of the maintenance of the Plan as previously ordered by the court due to the fact he is not currently married and since the applicant could not be placed upon the plan as beneficiary he is being ordered to maintain a plan with no potential beneficiary.  

9.  The Civil Action Order furthers states, in part, that based upon the evidence in this matter and after a careful and thorough review of the same, the Court hereby orders, adjudges, and decrees that the FSM execute such documents as necessary and directed by the Department of the Army to change the SBP coverage to former spouse coverage.  The Court further orders, adjudges, and decrees that the applicant shall be responsible for reimbursement for all premium payments to the FSM for the SBP.  The Court orders that the applicant obtain the necessary documents and provide them to the FSM.  In the event the FSM refuses to comply with this directive of the Court, the Court further requests that the Department of the Army review this Order to effectuate the applicant as the beneficiary under the SBP whereas the FSM has testified he is not currently married, has no current plans of marriage, and that he has tried to place the applicant on this SBP.

10.  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.  

11.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

12.  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 had not yet made an SBP election.

13.  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.

14.  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 applicant's contention that her former spouse's records should be corrected to show that she is entitled to be listed as the former spouse on his SBP was carefully considered and found to have merit.

2.  At the time of his retirement, the FSM elected SBP coverage participation for his spouse.  As part of the divorce settlement agreement, the FSM was required to elect SBP coverage for his former spouse; however, the FSM did not notify DFAS within one year of the divorce of his election for former spouse coverage, as required by the SBP statute.  His former spouse, the applicant, also did not make a deemed election within the one year.  

3.  Although the applicant could have and should have made a written request that the FSM’s SBP be converted from spouse coverage to former spouse coverage within 1 year of their divorce, the evidence shows that an injustice occurred in this case.  Therefore, it would now be appropriate to correct the injustice done to the applicant due to the FSM’s failure to comply with the terms contained in their 2004 divorce settlement.

4.  The intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case.  The applicant’s court-directed entitlement to continued SBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.  

5.  The evidence of record confirms the FSM agreed to continue SBP protection for the applicant as part of their 2004 divorce.  It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 1 year of the dissolution of his marriage to the applicant.   The FSM has sworn that he has not remarried and there appears to be no other person other than the applicant with a valid interest in receiving the FSM's SBP.  The FSM has also sworn that he has unsuccessfully attempted to change the coverage to former spouse.

6.  Given the FSM’s agreement to the court-directed continued SBP protection for the applicant as a former spouse it would be appropriate and serve the interest of justice, compassion, and equity to grant the requested relief.  

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 amendment of the ABCMR’s decision in Docket Number AR20070006048, dated
6 November 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM voluntarily requested that Survivor Benefit Plan coverage be changed from spouse to former spouse coverage effective 10 April 2004 and that the Defense Finance and Accounting Service timely received and processed the SBP change.



   ____________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)                                         AR20090000971



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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