IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090001324 


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 changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 

2.  The applicant states that her ex-husband (the FSM) was court-ordered to change his SBP election from spouse to former spouse.  She goes on to state that he failed to make the change and so she sent in the paperwork to make the change and was informed that she was too late because more than 1 year had elapsed.  She further states that she has been paying the SBP premiums to her ex-husband for the last 2 years, starting in January 2007.  She also states that she visited the Retirement Services Office (RSO) at Fort Sill, Oklahoma shortly after her divorce and was informed that she had nothing to worry about and that she was listed as a former spouse on the FSM's SBP account.  In October 2008, she went to the RSO to make sure she was still listed as a former spouse and they assured her that she was.  They also contacted officials at the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio and they informed her that there was no evidence that she and the FSM were divorced.  She continues by stating that she sent in a form claiming SBP status as a former spouse along with a copy of her divorce decree and received notification from DFAS that she was no longer eligible because she had waited more than 1 year. 

3.  The applicant provides a one-page letter explaining her application.  She also provides a copy of a letter from DFAS-Cleveland advising her that more than
1 year had elapsed between the time of her divorce and receipt of a former 

spouse election; therefore, she was not eligible for former spouse coverage under the SBP.  She further provides a copy of her former spouse election and a copy of her divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) in Montgomery, Alabama on 28 February 1978 for a period of 4 years and remained on active duty through a series of continuous reenlistments.  He married the applicant in Copenhagen, Denmark on 24 September 1981.  He was promoted to the pay grade of E-7 on
1 June 1994.

2.  On 30 September 1999, the FSM was honorably released from active duty by reason of sufficient service for retirement and he was transferred to the Retired List, effective 1 October 1999.  He had served 21 years, 7 months, and 3 days of total active service.

3.  At the time of his retirement, the FSM completed a DD Form 2656 in which he elected to participate in the SBP at a reduced amount of $462.00 and the applicant concurred with that election.  

4.  On 16 August 2006, the applicant was granted a divorce from the FSM in Commanche County, Oklahoma.  The divorce decree granted the applicant 42% of the FSM's military retired pay and directed that the FSM participate in the SBP at the FULL amount of his retired pay and that the applicant be deemed the beneficiary as a former spouse.  The divorce decree specifically states that both the applicant (petitioner) and the FSM (respondent) shall make timely application of retired pay and SBP participation.

5.  The FSM remarried in July 2007 and did not notify DFAS within 1 year of his remarriage that he wanted to discontinue spouse coverage.

6.  On 14 October 2008, the applicant faxed a copy of her request to be deemed the SBP beneficiary of the FSM's SBP as a former spouse.  She also faxed a copy of her divorce decree.

7.  On 18 November 2008, officials at DFAS informed the applicant that the former spouse election must be received within 1 year of the date of the court order and in her case, it was not received within the 1 year statutory deadline.  Accordingly, former spouse coverage could not be established.

8.  In the processing of this case a staff member of the Board contacted officials at the DFAS to ascertain the FSM's SBP status.  Officials at DFAS indicate that the FSM is divorced and that his SBP reverted to the child only option.  There was no indication that the FSM had since remarried and child-only premiums are only being deducted.

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.  Election of beneficiaries is made by category only, not by name.

10.  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.  

11.  Public Law 98-94, dated 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 was still on active duty and 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.  While 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, both the applicant and the FSM were directed by the civil court to make timely application of retired pay and SBP participation.

2.  By law, incident to a proceeding of divorce, a member has 1 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.

3.  Although it appears that the retired pay portion of the court order was handled in a timely manner, there is no evidence to show that either the applicant or the FSM made a timely application to change the SBP election to "former spouse" within the 1-year time limit, and the FSM has since remarried.

4.  Accordingly, the FSM's current spouse may have an interest in the FSM's SBP because the FSM has never changed his election from spouse to former spouse.  Once a divorce decree was received by the DFAS and a determination was made that his only eligible SBP beneficiary was his child, the DFAS changed it to child-only coverage and adjusted his premiums accordingly.  However, his current spouse automatically acquired spouse coverage on the first anniversary of his remarriage.  To grant the applicant's request at this date would constitute an unconstitutional taking from his current spouse.

5.  Therefore, in the absence of evidence to show that either the FSM or the applicant applied to DFAS within 1 year of their divorce to change the FSM's SBP election to former spouse and that their request was not handled in a proper manner, and in the absence of a notarized statement from the FSM's current wife agreeing to give up her rights to the SBP, there appears to be no basis to grant the applicant's request.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090001324



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ABCMR Record of Proceedings (cont)                                         AR20090001324



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