IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090012679
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, reconsideration of her previous request for correction of the records of her deceased former spouse, a former service member (FSM), to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse coverage.
2. The applicant states the court decreed that her former spouse was required to maintain her as beneficiary for payment of a survivor annuity upon his death as part of their divorce.
3. The applicant submitted a copy of a Civil Action Petition for Contempt and Order of Court, dated 25 March 1994, in support of this application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005976, dated 17 July 2008.
2. The applicant provides a Civil Action Petition for Contempt and Order of Court, dated 25 March 1994, which is new evidence that should be considered by the Board.
3. As stated in the original ABCMR proceedings, section II (Marital, Dependency, and Election Status) of the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 12 September 1984, shows he elected spouse and children coverage, full base amount, Option C. The applicant and the FSM were divorced on 8 August 1988.
4. The original proceedings also stated that the Qualified Domestic Relations Order (QDRO) filed on 20 May 1991 states, in part, that in the event of the FSM's death, the applicant would be entitled to the "surviving spouse benefits."
5. The FSM retired from active duty on 28 August 1993 in the rank of colonel. At that time, he declined to participate in the SBP for spouse coverage. The original proceedings further state that the FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 5 August 1993, shows the FSM did not complete item 15 (Check one of the following to indicate the type of coverage you desire) in part V (Survivor Benefit Plan Election) and the Supplemental Survivor Benefit Plans Election for Spouse/Former Spouse (SSBP) shows he declined to elect coverage under the SSBP.
6. The Civil Action Petition for Contempt and Order of Court filed 25 March 1994 states that on 19 October 1990 a consent order was entered and paragraph 6(a) stated that a QDRO covered the FSM's U.S. Army pension and entitled the applicant to 35 percent of the FSM's monthly pay-out. The Civil Action Petition for Contempt and Order of Court further stated that the FSM began to receive his U.S. Army pension in July 1993 and made no payments to the applicant. As a result, the applicant was advised that the U.S. Army would begin to pay her directly effective 5 March 1994. The Civil Action Petition for Contempt and Order of Court stated that the lack of compliance on the part of the Respondent/
Defendant [FSM] demonstrates a contemptuous attitude towards the courts and the order entered.
7. The FSM died in February 2008. His death certificate indicates he was divorced.
8. 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.
9. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
10. 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 had not yet made an SBP election.
11. Public Law 95-397, the 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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60. A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. RCSBP/SBP elections are made by category and beneficiaries are not designated by name. An election, once made, is irrevocable except under certain circumstances provided for by law.
12. 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 1 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.
13. 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 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the FSM's records should be corrected to show that she is entitled to be listed as the former spouse on his RCSBP was carefully considered and found to have merit.
2. At the time of his retirement, the FSM elected RCSBP coverage for his spouse.
The FSM was required to elect RCSBP coverage for his former spouse as part of the divorce settlement agreement; however, the FSM did not notify DFAS within 1 year of the divorce of his election for former spouse coverage, as required by the statute. His former spouse, the applicant, also did not make a deemed election within 1 year.
3. Although the applicant could have and should have made a written request to have the FSM's RCSBP converted from spouse coverage to former spouse coverage within 1 year of their divorce, the evidence shows that an injustice occurred in this case. Therefore, it would now be appropriate to correct the injustice done to the applicant due to the FSM's failure to comply with the terms contained in their 1991 divorce settlement.
4. The intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant by the FSM in this case. The applicant's court-directed entitlement to continued RCSBP coverage demonstrates she has a proper interest in this case and satisfies the regulatory criteria necessary to establish her right to have this case considered by the Board.
5. The evidence of record confirms the FSM agreed to continue RCSBP protection for the applicant as part of their 1991 divorce. It is also evident that he violated this agreement by failing to convert his SBP from spouse coverage to former spouse coverage within 1 year of the dissolution of his marriage to the applicant.
6. Given the FSM's agreement to the court-directed continued RCSBP protection for the applicant as a former spouse and the fact that there are no other parties in whom the RCSBP/SBP has been vested, it would be appropriate and serve the interest of justice, compassion, and equity to grant the requested relief.
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 amendment of the ABCMR's decision in Docket Number AR20080005976 on 17 July 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM voluntarily requested that the RCSBP coverage be changed from spouse to former spouse coverage effective 20 May 1991 and that the Defense Finance and Accounting Service be instructed pay an annuity after collecting any RCSBP costs due as a result of this correction.
___________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) AR20090012679
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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