IN THE CASE OF:	  

		BOARD DATE:	        29 October 2009

		DOCKET NUMBER:  AR20090009568 


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 (the former spouse) requests the payment of a portion of the retired pay of her deceased former husband, a former service member (FSM).

2.  The applicant states, in effect, that she was married to the FSM for 23 years and that their divorce, in the form of a Qualified Domestic Relations Order (QDRO), was sent to the appropriate office requesting the payment; however, it was returned due to an incorrect address.  

3.  The applicant provides a copy of her marriage certificate, dated 14 October 1967; a copy of the QDRO, dated 6 November 2000; a copy of a PS Form 3811 (Domestic Return Receipt), dated 27 February 2009; a copy of a letter, dated 24 February 2009, addressed to the Army Reserve Personnel Center, St. Louis, MO; two pages of hand-written notes, numbers, and names; and a self-authored statement, dated 24 February 2009, in support of her request.  

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 26 March 1944.  He was inducted into the Army of the United States and entered active duty on 29 June 1965.  He held military occupational specialty 62E (Construction Machine Operator) and attained the rank/grade of specialist five/E-5.  He was honorably released from active duty on 28 June 1967. 


2.  The FSM’s records further show he enlisted in the Regular Army on 22 September 1967.  He and the applicant, L- - - - - -, were married in Emporia, VA, on 14 October 1967.  He was honorably discharged on 21 September 1973. 

3.  The FSM's records further show he enlisted in the Virginia Army National Guard on 28 December 1984 and then in the U.S. Army Reserve (USAR) on 2 April 1986.  He executed several reenlistments in the USAR and served in various staff and leadership positions.

4.  The applicant and the FSM divorced on 10 January 1994.

5.  On 30 October 1996, the U.S. Army Personnel Center, St. Louis, MO, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  On 14 June 1997, the FSM completed and submitted a DD Form 1883 in which he indicated that he was not married and did not have dependent children.  He further elected spouse and children, full Survivor Benefit Plan (SBP) coverage, Option A (Defer).  He authenticated this form by placing his signature in the appropriate place.  In Section III (Family Information), he entered the word "None." 

7.  On 4 February 2000, the FSM married his second spouse, G - - - - -, in Richmond, VA. 

8.  On 6 November 2000, a QDRO was issued by the Circuit Court of Henrico County, VA, that related to the provision of alimony payments and/or marital property rights between the applicant and the FSM as related to the "Reserve Forces Retirement Plan."  The order stipulated the following:

	a.  the order assigned a portion of the benefits in the Reserve Forces Retirement Plan from the FSM to the applicant.  The Plan Administrator, the Army Reserve Personnel Center, St. Louis, MO, was ordered to assign fifty percent of the FSM's accrued benefit under the Plan to the applicant from the date of marriage to the date of separation; 

	b.  once the FSM attained the earliest retirement age, benefits assigned would be paid in accordance with any actuarially equivalent form of payment allowed by the Plan; 

	c.  if the FSM died after the earliest retirement age, but before commencement of benefits, the former spouse (the applicant) would not be treated as the spouse for receiving a survivor allowance; and 
	d.  if the FSM died after commencement of benefits, the former spouse (the applicant) would not be treated as the spouse for the purposes of receiving a Joint and Survivor Allowance and any election by the FSM to receive his benefits in a form other than a Joint Allowance would be effective.

9.  There is no record at the Defense Finance and Accounting Service (DFAS) that the QDRO was forwarded to the Retired Pay Office or the Garnishment Operations Office at DFAS.  

10.  On 12 February 2004, in anticipation of his 60th birthday and/or upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated that he was married but had no dependent children.  He further elected spouse only SBP coverage, based on a reduced amount under the SBP.  He, a witness- an SBP counselor- and his spouse G - - - - - authenticated this form by placing their signatures in the appropriate places.

11.  The FSM died on 9 February 2009.  His death certificate is not available for review with this case. 

12.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted          30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

13.  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 (also Reservists).  The USFSPA established the pension protection for military ex-spouses.  This law was passed to overrule a 1981 U.S. Supreme Court case, McCarty v. McCarty, holding that military retired pay could not be treated as marital property in divorce.  USFSPA allows a State divorce court to award a share of a member’s pay as marital property.  USFSPA generally permits, but does not require, a State court to award a share of retired pay.  The treatment of military retired pay differs from state to state.  In most community property states (AZ, CA, ID, LA, NV, NM, TX, WA, and WI), a portion of the military spouse’s retired pay will be considered the property of both spouses, and the non-military spouse will be entitled to one-half of that portion.  The portion will generally be based on the number of years of marriage during which the retired pay was earned, divided by the total years of service. If the spouses were married for at least ten years while the member was on active duty, the non-military spouse will qualify for direct enforcement, which means that his or her portion of the retired pay will be paid to him or her directly by the military finance office.  Most non-community property States will award a portion of the retired pay to the non-military spouse.  A few States treat military retired pay as the property only of the military person.  But usually in those states, the judge must consider the retired pay received by the military spouse when setting the amount of alimony.

14.  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.

15.  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 she is entitled to a portion of the retired pay of her deceased former husband, a FSM.  The QDRO does not make it clear whether the FSM’s retired pay was at issue or whether the SBP was at issue, or both.

2.  The evidence of record shows that the applicant and the FSM were married on 14 October 1967.  They were separated on 15 August 1990 and ultimately divorced on 10 January 1994.  The QDRO ordered a portion of the FSM's pay be paid to the applicant.  However, there is no indication that the applicant timely forwarded a copy of the QDRO to DFAS at the time.  The applicant mailed a copy to the U.S. Army Human Resources Command-St. Louis, MO, in February 2009.  It was the applicant's responsibility to submit the proper document to DFAS.  Her not doing so in a timely manner does not create an injustice or error that the Army can fix or resolve.  Since the FSM is deceased, there is no longer a “pot” of retired pay from which a records correction could be made that could pay her a portion of his retired pay.

3.  With respect to SBP benefits, at the time of their divorce the FSM neither had an SBP election in effect nor was he required by the QDRO 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.

4.  The evidence of record shows that the FSM remarried on 4 February 2000 and elected reduced spouse SBP coverage when he applied for retired pay in February 2004.  He and the applicant had been divorced for nearly 14 years at the time he made an SBP election and he was under no obligation by the QDRO to maintain SBP coverage for a former spouse.  There is no error or injustice.

5.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  The FSM's widow is in receipt of the annuity.  A change in SBP beneficiary would have been strictly a voluntary action on the part of the FSM, which the evidence of record shows he did not make.

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)                                         AR20090009568



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ABCMR Record of Proceedings (cont)                                         AR20090009568



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