IN THE CASE OF:	

		BOARD DATE:	3 September 2009  

		DOCKET NUMBER:  AR20090003783 


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 former service member (FSM), be corrected to show she is entitled to Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, she was unaware her divorce decree was absent her ex-spouses' information and that she thought the DD Form 2933 (Application for Former Spouse Payment from Retired Pay) and a court certified copy of her divorce decree was all she needed to establish a deemed election.  She also states that the letter she received from the Defense Finance and Accounting Service (DFAS), dated 1 August 2008, was the first time she became aware that the DD Form 2293 did not serve as the request for a deemed election. 

3.  The applicant provides a copy of her divorce decree, a copy of a DD Form 2293, five copies of letters from DFAS, and four copies of letters to DFAS in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant and the FSM were married on 23 January 1984.  The FSM had entered military service as a Regular Army enlisted Soldier on 22 August 1978 and served continuously until his retirement for length of service on 31 January 2005.


2.  DFAS Military Pay Office confirmed that the FSM married the applicant on 23 January 1984.  The DFAS representative also confirmed that the FSM's original election was set to "automatic" because he did not make a valid election in time for his retirement.  This resulted in full SBP coverage for his spouse.  DFAS also stated that as a result of the divorce, the account has been adjusted to reflect no beneficiary and a credit for payments deducted.

3.  On 12 September 2007, a Judgment of Dissolution was ordered.  Although the effective date of the dissolution was backdated to 29 July 2007, the date of the order which incorporated by reference an "Attachment to Judgment" that divided the parties' property and awarded the applicant SBP coverage with the associated cost to be shared equally by the parties was 12 September 2007.

4.  On 14 February 2008, the applicant submitted a DD Form 2293 by certified mail requesting former spouse payment of alimony, spousal support, or maintenance in the amount of 36.2 percent of the FSM's disposable retired pay per month to DFAS-Cleveland.  It was received by DFAS on 25 February 2008.

5.  In an undated letter, DFAS-Cleveland Garnishment Operations notified the applicant that her application for payment of a portion of the FSM's retired pay was returned without action because they could not identify the individual to whom it applied.  DFAS explained that even though the state or court may prohibit the disclosure of social security numbers, they require the social security number in order to process their cases.

6.  On 17 April 2008, the applicant submitted a letter to the "official whom it may concern" which contained the FSM's name, social security number, and address.

7.  On 2 May 2008, DFAS Garnishment Operations again told the applicant that she failed to provide the documents requested in their previous undated correspondence.  DFAS also attached a document stating that they were unable to identify the FSM based on the social security number provided.

8.  On 28 May 2008, the applicant submitted a letter to DFAS stating that she was again sending a copy of the documents that were previously sent to their office by certified mail on 25 February 2008.

9.  On 20 June 2008, DFAS informed the applicant that they had not received a clarifying order in this matter.

10.  On 24 July 2008, the applicant submitted a letter to DFAS Garnishment Operations explaining her attempts to clarify and provide the information DFAS requested in previous correspondence.  She attached a copy of an addendum to the domestic relations order that contained the FSM's social security number.

11.  On 1 August 2008, DFAS-Cleveland notified the applicant by letter that her application for payment of a portion of the FSM's retired/retainer pay was received.  The letter explained to the applicant that prior to payments, regulations required that their office notify the FSM of the applicant's request and that the FSM be given 30 days to provide information regarding the status of the court order.  The letter further informed the applicant that if her divorce decree stipulated that she were to be designated as a former spouse beneficiary for the SBP, she was urged to make a deemed election for SBP coverage within 1 year of the date of divorce.

12.  On 8 August 2008, the applicant submitted a letter to DFAS Military Retired Pay Office explaining that she was finally receiving retired pay and was making a deemed election to keep the SBP for the start date of her divorce.

13.  On 20 October 2008, DFAS-Cleveland Retired and Annuity Pay notified the applicant by letter that her request for SBP was submitted too late.  She had to make a deemed election for SBP coverage within 1 year of the date of divorce.  Her divorce was in July 2007 and she did not submit her request until August 2008.

14.  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.

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

16.  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.

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 1 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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  At the time of his retirement, the FSM made no SBP election which resulted in his election being set to "automatic" and his spouse being given full SBP coverage.  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 1 year of the divorce of his election for former spouse coverage as required by the SBP statute.  There is no evidence that the FSM responded to the correspondence sent by DFAS regarding the SBP election.  However, the applicant made a timely request for a deemed election of SBP former spouse coverage.  It is not the effective date of the dissolution of marriage that triggers the 1-year deemed election window, but the date the court awarded the applicant an interest in the SBP.

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:

	a.  showing the applicant made a request for a deemed election for former spouse coverage within 1 year of her divorce from the FSM and that DFAS affected the change; and


	b.  by advising the FSM that DFAS will be instructed to collect any SBP costs due as a result of this correction.



      ___________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)                                         AR20090003783



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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