BOARD DATE:	 25 August 2009 

		DOCKET NUMBER:  AR20090003862 


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 his military records be corrected to show he timely elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that the Defense Finance and Accounting Service (DFAS) is attempting to require that he pay for SBP although his spouse currently draws an SBP annuity based on her previous marriage to a deceased former service member (FSM).

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) with the period ending 30 September 1978; a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 31 August 1986; two Final Decrees for Dissolution of Marriage from the Hardin Circuit Court of the Commonwealth of Kentucky, with ending dates 21 November 2002 and 2 May 2003; a State of Nevada Marriage Certificate, dated 4 May 2004; two letters addressed to DFAS, with ending dates 4 August 2003 and 7 July 2004; a State of Tennessee Certificate of Death, dated 6 November 2007; and a DFAS SBP Premium Bill Statement, dated January 2009.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 
or injustice.  This provision of law also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 30 September 1978, the applicant retired.  At the time of the retirement, he was married to Maria and opted to enroll in SBP.  On 21 November 2002, the applicant and Maria were divorced.  Maria did not make a deem election request within the required time frame after their divorce.

3.  On 4 May 2004, the applicant married Mildred.  Mildred had been previously married to a retired Army master sergeant and had a deemed election for his SBP.

4.  By letter to DFAS, dated 7 July 2004, the applicant requested restart of spouse SBP coverage based on his 4 May 2004 marriage to Mildred.

5.  On 1 November 2007, Mildred ex-husband died and she was subsequently awarded an SBP annuity.

6.  A DFAS SBP Premium Bill Statement, dated January 2009, shows that the applicant has a SBP debt in the amount of $5,427.63.

7.  On 26 June 2009, the applicant's spouse concurred with his SBP election not to participate in SBP coverage, she signed and had the document notarized.  She further indicated by signing the statement she was waiving her rights to the SBP.

8.  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.  

9.  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.  

10.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members.

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

13.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.

14.  Department of Defense Financial Management Regulation (DODFMR), Volume 7B, section 4401, regarding technical and administrative changes to SBP states that an individual may not receive more than one annuity as the surviving spouse or former spouse of different members.  However, an individual may be the recipient of two or more annuities concurrently, so long as only one is a spouse or former spouse annuity.  For example, an individual who was a spouse beneficiary of one member could also be a beneficiary of another member under the insurable interest category.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DFAS is attempting to require that he pay for SBP although his spouse currently draws an SBP annuity based on her previous 
marriage to a deceased FSM.  Evidence shows that the applicant's current spouse Mildred divorced a retired FSM.  She deemed election for former spouse SBP coverage on 4 August 2003.  The applicant and Mildred married on 4 May 2004 and he elected to restart spouse SBP coverage on 7 July 2004.

2.  On 1 November 2007, Mildred's ex-husband died and she was subsequently awarded SBP annuity based on his death.  It is clear that at the time the applicant elected to participate in the SBP upon his marriage to Mildred, the applicant wanted to insure she was covered by SBP.  However, in accordance with the DODFMR, the applicant's spouse may not receive more than one annuity as the surviving former spouse of a different member.  

3.  Evidence of record shows that at the time of the applicant retirement, he was married to Maria and opted to enroll in SBP.  On 21 November 2002, he and Maria were divorced.  The applicant indicated that Maria did not make a deem election request within the required time frame after their divorce.  However, the applicant has failed to provide the "Property Settlement Agreement" of the divorce decree that would shows whether he was court ordered to pay SBP premiums for Maria or even if Maria was aware of her deemed election rights after one year from their divorce.

4.  Therefore, in the absence of evidence either that the applicant's former spouse was not awarded SBP via the "Property Settlement Agreement" mentioned above or that his former spouse is deceased, the applicant is not entitled to equitable relief.

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)                                         AR20090003862





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ABCMR Record of Proceedings (cont)                                         AR20090003862



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