IN THE CASE OF:	  

		BOARD DATE:	       28 JULY 2009

		DOCKET NUMBER:  AR20090004681 


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 records of her deceased former spouse, a former service member (FSM), be corrected to show that he changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage at the time of their divorce.

2.  The applicant states that the Qualified Domestic Relations Order states that the SBP was set up according to military protocol.  She adds that she received a letter, dated 13 May 1994 (enclosed) from the Law Office of R—T--- that shows the required forms were submitted to the Defense Finance and Accounting Service (DFAS).  She also adds that subsequent to the FSM's death on 20 October 2008, she received a letter, dated 23 October 2008, from DFAS requesting the necessary paperwork to set up the pension and that she faxed all the necessary paperwork.  However, on 20 November 2008, she received another letter from DFAS that essentially told her she is ineligible for the SBP annuity since there was no record that the change in election was submitted within one year of the divorce.  

3.  The applicant provides copies of the DFAS letters, dated 30 March 1994, 23 October 2008, 20 November 2008, and 23 February 2009; a copy of the FSM's death certificate, dated 20 October 2008; a copy of her Qualified Domestic Relations Order, dated 7 March 1994; a copy of her decree in divorce, dated 29 March 1994; and a copy of a letter, dated 13 May 1994, from the Law Offices of R—T---, Carlisle, PA, in support of her request.


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.  With prior enlisted and warrant officer service, the FSM's records show he was appointed as a first lieutenant in the U.S. Army Reserve on 23 June 1965 and entered extended active duty.  He subsequently served in various command and staff positions within and outside the continental United States and was promoted to major.  His records also show that he and the applicant, K-----, were married on 19 April 1967.

3.  On 29 July 1977, in anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel) and indicated that he was married and had dependent children.  He further elected spouse only, full SBP coverage.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  

4.  The FSM's records also show he was honorably released from active duty on 31 October 1977 and transferred to the retired list in his retired rank of major on 1 November 1977.  He was credited with 22 years and 19 days of creditable active service.

5.  On 7 March 1994, the FSM and applicant agreed to a Qualified Domestic Relations Order wherein the FSM agreed that his former spouse (the applicant) would receive a portion of his retirement pension.  The Order states that the "Retiree has elected the maximum Survivor Benefit Plan for his former spouse."  A copy of this Qualified Domestic Relations Order was forwarded to DFAS. 


6.  On 4 May 1994, by letter, DFAS notified the applicant's counsel that before payment of a portion of the FSM's pay to the applicant could be accomplished the decree of divorce must be certified.

7.  On 13 May 1994, by letter addressed to DFAS, the applicant's counsel forwarded a certified copy of the Qualified Domestic Relations Order.

8.  On 20 October 2008, the FSM died.  His certificate of death shows he was divorced at the time of death.

9.  On 23 October 2008, by letter, a DFAS military pay technician notified the applicant that the FSM continued to pay SBP premiums until his death and that with the submission of specified documents, a portion of the premium would be refunded to her.

10.  On 20 November 2008, by letter, a DFAS military pay technician notified the applicant that she was ineligible for the SBP annuity since the spouse loses eligibility as an SBP beneficiary upon divorce.  She was also notified that the FSM did not make an election for former spouse coverage and that a court order by itself could not be used to institute coverage. 

11.  On 23 February 2009, by letter, the DFAS Deputy Director for Operations notified the applicant's Member of Congress that the applicant lost eligibility upon her divorce from the FSM and that neither party elected former spouse coverage within one year of their divorce.  

12.  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.  

13.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

14.  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.


15.  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.

16.  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 contends that the records of her deceased former spouse should be corrected to show that he changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree.  

2.  The evidence of record shows that prior to his retirement in 1977, the FSM elected full SBP spouse coverage.  Furthermore, he and the applicant were divorced on 7 March 1994 and their Qualified Domestic Relations Order, a certified copy of which was forwarded to DFAS within two months of their divorce, stipulated that the retiree (the FSM) had elected the maximum SBP for his former spouse.  However, there is no indication that the FSM submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within one year of the divorce.

3.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  Nevertheless, the FSM was required to make a former spouse election as stipulated in the Qualified Domestic Relations Order within one year of the divorce.  He did not do so, but continued to pay SBP premiums until his death, which is indicative of the fact that he intended to comply with the terms of the divorce and provide an annuity for applicant's benefit.

4.  There is sufficient evidence to show that the FSM's intent was to change the SBP coverage from "spouse" to former spouse" and, as such, his record should be corrected to show he did so and that his request was received and processed by DFAS in a timely manner.
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 showing he changed his SBP coverage from "spouse" coverage to "former spouse" coverage" within one year of their divorce in March 1994, that his request was received by DFAS and processed by the appropriate office in a timely manner, and that the applicant be paid the SBP annuity retroactive to the day after the FSM's death.




      _______ _   _XXX______   ___
               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)                                         AR20090004681



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ABCMR Record of Proceedings (cont)                                         AR20090004681



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