IN THE CASE OF:	

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20090004008 


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 Board reverse its decision to correct his records to show that his former spouse properly submitted and accepted deemed former spouse SBP election of 13 January 2003 was never stopped, and has remained in force since that date; by showing the applicant's former spouse is the legal former spouse beneficiary for the applicant's SBP benefits; and by collecting all back SBP premiums due from the applicant's retired pay.  

2.  The applicant states that he was "tried in absentia by the Army Board of Corrections and they, to all intents and purposes, judged me to be a lying deadbeat!"  

3.  The applicant explains that because of extremely poor legal representation at his divorce, the divorce decree included $2,000.00 a month child support and permanent SBP coverage for his former spouse, neither of which he agreed to.  He did not discover these two directives until he paid for a copy of the divorce decree a couple of months later.  The applicant continues that his former spouse submitted a deemed election for SBP coverage without his knowledge, and he thought that "an unfair order like that would not be heeded by the government I served for 25 years, no matter how unfair I already knew the Uniformed Service Former Spouse Protection Act to be!!"  So he changed his 



SBP beneficiary to his children without knowing that his former wife was his beneficiary at that time.  He claims he did not purposely make that election to lower his monthly payments or cheat the government.

4.  The applicant then describes his current financial status, and states that the recoupment of the difference in SBP premiums caused by the Board's directive in his former wife's case has caused him extreme financial hardship.

5.  The applicant provides an annotated copy of his former wife's ABCMR case; an excerpt from his divorce decree; and a record of phone conversation.

CONSIDERATION OF EVIDENCE:

1.  In the Board's consideration of the applicant's former wife's case, it found:

	a.  The former service member's (FSM's) (the current applicant) record shows he served on active duty, in both enlisted and officer statuses, for 25 years, 3 months, and 17 days, until being honorably released from active duty for retirement, in the rank of sergeant first class (SFC), on 31 May 1997.  

	b.  On 16 May 1987, the applicant (the current applicant's former spouse) and FSM were married.  

	c.  The FSM's record shows that during his retirement processing, he elected "Spouse and Child" SBP coverage, with the applicant being named as the spouse beneficiary.    

	d.  On 6 August 2002, the applicant and FSM were divorced.  Page 23 of the divorce decree issued by the District Court, 285th Judicial District, Bexar County, Texas, ordered that the applicant continue to be beneficiary as a former spouse for the FSM's SBP.  It further ordered, in effect, that the FSM immediately complete and forward the necessary paperwork to the DFAS to provide 
SBP benefits to the applicant as a former spouse.  

	e.  On 13 January 2003, the applicant submitted a deemed SBP election that was processed and accepted by DFAS.  

	f.  On 24 April 2005, the FSM called DFAS and indicated that SBP coverage was not in the divorce decree, and DFAS stopped the former spouse election and refunded SBP premiums to the FSM.  


	g.  On 16 September 2007, the FSM remarried and his current spouse was added as SBP beneficiary.  

	h.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that the State courts could treat military retired pay as community property in divorce cases if they so chose.  

	i.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions, and Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.  

	j.  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.  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.

2.  In the Board's consideration of the applicant's former wife's case, it concluded:

	a.  The applicant's contention that she should be the beneficiary for the FSM's SBP as the former spouse as directed in their divorce decree of 6 June 2002 was carefully considered and found to have merit.   

	b.  The evidence of record confirms that in the divorce decree for the FSM and applicant, which was issued by the District Court, 285th Judicial District, Bexar County, Texas, on 6 August 2002, the court ordered the applicant be named as a former spouse beneficiary for the FSM's SBP.  The applicant properly submitted a deemed election within 1 year of the divorce on 13 January 2003, and this deemed election was properly processed and accepted by 





DFAS.  It further shows that although former spouse SBP coverage was ordered in the divorce decree, based on a call from the FSM indicating SBP was not directed in the divorce decree, DFAS stopped this former spouse election in April 2005.  

	c.  This Board would not normally take action depriving the FSM’s current spouse of property interest without due process.  However, in this case, the applicant properly submitted a deemed election within 1 year of the divorce in accordance with the governing law, and this deemed election was accepted by DFAS and was only stopped based on what appears to be erroneous information provided by the FSM in April 2005, which was well before the FSM's marriage to his current spouse took place.  As a result, the FSM's current spouse was not eligible to become the FSM's SBP beneficiary when they were married because the valid former spouse deemed election was erroneously stopped and should still have been in force at that time.  

	d.  In addition, DFAS should notify the FSM and his current spouse that she is no longer the FSM's SBP beneficiary due to the fact that by law, the applicant as the FSM's former spouse was the proper beneficiary at the time of her marriage to the FSM and as result she was not eligible to be named SBP beneficiary at the time of her marriage to the FSM.  

3.  In the Board's consideration of the applicant's former wife's case, it recommended that all Department of the Army records of the individual concerned be corrected by showing that the applicant's properly submitted and accepted deemed former spouse SBP election of 13 January 2003 was never stopped, and has remained in force since that date; by showing the applicant is the legal former spouse beneficiary for the FSM's SBP benefits; and by collecting all back SBP premiums due from the FSM's retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  The divorce decree ordered that the applicant provide his former wife SBP coverage and his former wife made a deemed election for SBP in the time prescribed by law.  Therefore, the applicant was required by law to pay for SBP coverage for his former wife.  

2.  Based on those facts, the Board corrected the applicant's records so his SBP beneficiary was in compliance with the court order and law.  There is no error or injustice in the Board's previous correction.

3.  Because the Board acted to correct a record to bring it into compliance with a court order and law, the mitigating factors raised by the applicant have no bearing.  Unfortunately, neither the applicant's knowledge of whether his former wife had made a deemed election, nor the applicant's financial status had, or have, any bearing on the case.  

4.  If the applicant believes that the court order should be modified, he will have to petition the court which issued the court decree, or to an appellate court of appropriate jurisdiction.  If the applicant believes that the law which allows for a former spouse to make a deemed election of a military retiree's SBP is unfair, he should write his elected representative.  These are issues that are beyond the authority of the Board.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004008





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004008



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1