DOCKET NUMBER:  AR20090005343 


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 service member (SM), be corrected to show she correctly filed a request for a deemed election for former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states that her 33-year marriage to the applicant ended in divorce and that she has been trying to get the necessary paperwork done for retirement benefits from his service in the Army National Guard and U.S. Army Reserve (USAR).  She adds that she received a letter from the Defense Finance and Accounting Service (DFAS) on 20 February 2009 denying her request to deem the election for coverage under the SBP.  She also adds that she was unaware of the one-year limit after the divorce and that she did request information from the military back in 2001 after her divorce, but received no response.  She further states that one of the reasons for the confusion with regards to the SBP is her husband's incorrect social security number which was finally corrected on his records.  She concludes that her original divorce decree did not include a stipulation with respect to military benefits until her husband's total number of retirement points was corrected and that a stipulation was finally added in 2008.

3.  The applicant provides a copy of the DFAS letter, dated 13 Fe4bruary 2009; a copy of her divorce decree, dated 20 December 2000; and a copy of a stipulation and order amending her divorce decree, dated 18 December 2008, in support of her application.


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.  The SM's records show he was born on 31 March 1944 and enlisted in the Utah Army National Guard (UTARNG) for a period of 3 years on 27 June 1962.  He subsequently entered active duty for training (ADT) on 30 June 1962, completed basic combat and advanced individual training, and was awarded military occupational specialty 630.00 (Automotive Maintenance Helper).  He was honorably released from ADT to the control of his ARNG unit on 15 December 1962.  

3.  The SM's records also show he married his spouse, Rose, the applicant, on 21 April 1967, in St. George, UT, and remained in the ARNG until 2 August 1974 when he was honorably discharged for the purpose of accepting an appointment as a commissioned officer.

4.  The SM's records further show he was appointed as a second lieutenant in the Arizona Army National Guard (AZARNG) on 3 August 1974.  He subsequently served in various command and staff positions, and was honorably separated from the ARNG in the rank of captain (CPT) on 15 October 1984 and transferred to the USAR Control Group (Reinforcement).  

5.  The SM's records further show he was ordered to ADT on 18 July 1986.  He subsequently completed the Military Police Officer course and was honorably released from active duty to the control of his USAR unit on 16 December 1986.

6.  On 12 October 1988, the U.S. Army Reserve Personnel Center (now known as the U.S. Army Human Resources Command, or HRC), St. Louis, MO, published Orders D-10-077605, directing the SM's honorable discharge from the USAR, effective 5 October 1988.


7.  On 20 December 2000, the applicant and the SM were divorced.  Their divorce decree entitled the applicant to one-half of any retirement pension or benefits accrued during their marriage, including military retirement.  However, the divorce was silent with respect to the SBP.

8.  On 29 August 2008, the SM completed a DD Form 2656 (Data for Payment of Retired Personnel), applying for retired pay.  He indicated that he was married to Mary on 8 August 2008 and elected to participate in the SBP for spouse coverage, full base amount.

9.  On 8 September 2008, HRC-St. Louis, MO, published Orders P09-814402, announcing the applicant's retirement from the USAR in the rank of CPT effective 31 March 2004, the date he turned age 60. 

10.  On 18 December 2008, the applicant's 20 December 2000 divorce decree was amended to add required language necessary to give effect to the division of the SM's military pension.  The stipulation awarded the applicant a percentage of the SM's disposable military retired pay.  

11.  On 13 February 2009, and in response to the applicant's 16 October 2008 request, by letter, a Military Pay Technician at DFAS-Retired and Annuity Pay notified the applicant that her request to deem an election for coverage under the SBP was denied.  She was further notified that in order for a former spouse to make a proper deemed election request for SBP it was necessary that there be in effect a court order that specifically requires the member to elect coverage on behalf of his former spouse and then the former spouse has one year from the date of the order to submit a written request to deem the election.

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.  Elections are made by category, not by name.

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.

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

15.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  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.

17.  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 former spouse, a retired SM should be corrected to show she correctly filed a request for a deemed election for SBP former spouse coverage.

2.  The evidence of record shows that the applicant, Rose, and the SM were divorced on 21 December 2000.  At the time of their divorce, the SM neither had an SBP election in effect nor was he required by the divorce decree to make one. Additionally, there is no evidence in the available record that shows he was eligible to participate in the SBP at the time of their divorce.

3.  The evidence of record further shows that the SM remarried on 8 August 2008 and elected full SBP coverage for spouse (Mary, at the time) when he applied for retired pay in August 2008.  He and the applicant had been divorced for nearly    8 years at the time he made an SBP election and he was under no obligation by either the original divorce decree or the amended divorce decree to maintain SBP coverage for a former spouse. There is no error or injustice.

4.  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 did not submit evidence which would satisfy this requirement.  Therefore, she is not entitled to the requested 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)                                         AR20090005343



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ABCMR Record of Proceedings (cont)                                         AR20090005343



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