IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090013464 


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 the records of her former husband, a service member (SM), be corrected to show she filed a timely request to deem the Survivor Benefit Plan (SBP) election.   

2.  The applicant states that officials at the Defense Finance and Accounting Service (DFAS) have determined that the statutory filing deadline had expired in her case because she and the SM were divorced on 16 January 1990 and their divorce decree was silent concerning SBP designation.  However, an amended decree was entered on 19 August 2008 that ordered the SM to continue SBP coverage and designate her as beneficiary.  Additionally, on 14 May 2009, a State Court opined that her submission for a deemed election was timely and that DFAS officials were in error when they issued a letter to her with the determination that her request was untimely.   

3.  The applicant provides a copy of the DFAS letter, dated 8 May 2009; a copy of the Court of Appeals of the State of Washington Published Opinion, dated 14 May 2009; and a copy of the Amended Decree of Dissolution of Marriage, dated 19 August 2008; in support of her request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that former spouse SBP coverage be deemed to the applicant. 

2.  Counsel states that the Board should not hesitate to contact him if there are any questions or if it needs additional information.

3.  Counsel provides a copy of the applicant's divorce decree, dated 16 January 1990, and a copy of amended decree of the dissolution of marriage, dated 19 August 2008, in support of the applicant’s request. 

CONSIDERATION OF EVIDENCE:

1.  The SM's records show he was born on 6 June 1944 and married his spouse Ca-----, the applicant, in January 1964. 

2.  The SM's records also show he was appointed as an infantry second lieutenant and entered active duty on 30 June 1967.   He subsequently served in various command and staff positions within and outside continental United States and attained the rank of captain.  He was honorably discharged on 31 January 1978.

3.  The SM's records further show he was subsequently appointed as a captain in the U.S. Army Reserve (USAR) and again served in various command and staff positions and attained the rank of lieutenant colonel (LTC).

4.  On 16 January 1990, the applicant and the SM were divorced.  The divorce decree addresses the retirement pay but is silent concerning the SBP designation.  

5.  The SM’s records further show he married his second spouse K____ on 1 September 1990.

6.  On 4 March 1993, by memorandum, the SM elected to be transferred to the Retired Reserve.  Accordingly, on 13 May 1993, the USAR Personnel Center (now known as the U.S. Army Human Resources Command-St. Louis or USAHRC-St. Louis) published Orders C-05317967 ordering the SM’s release from the USAR Control Group (Reinforcement) and transfer to the Retired Reserve by reason of completion of 20 years of Reserve duty.

7.  On 29 May 1996, USAHRC-St. Louis issued the SM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the SM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.



8.  On 5 August 1996, the SM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was married to "K____" and had no dependent children.  He further elected "spouse only" coverage, based on the full amount, option C (immediate coverage), under the Reserve Component (RC) SBP.

9.  On 26 August 2002, in connection with his application for retired pay at age 60, the SM completed a DD Form 2656 (Data for Payment of Retired Personnel) in which he indicated that he was married to "K____ "and elected spouse SBP coverage based on full gross pay.  He authenticated this form by placing his signature in the appropriate block.  His spouse "K____" and a witness authenticated this form and placed their signatures in the appropriate blocks.

10.  On 18 February 2004, USAHRC-St. Louis published Orders P02-481419 announcing the SM's retirement from the USAR in the rank of LTC effective 6 June 2004, the date he turned age 60.

11.  On 19 August 2008, the SM and the applicant petitioned the Superior Court of Washington, Walla Walla County, WA, for an order clarifying the decree of dissolution of marriage between the applicant and the SM.  The Court concluded that the decree entered on 16 January 1990 was silent regarding the SBP and designation of beneficiary.  The Court ordered the decree of dissolution of marriage entered on 16 January 1990 be amended as follows: The Court ordered the SM continue SBP coverage until the death of one of the parties and, effective upon entry of this decree, to designate the applicant as the beneficiary under the SBP. 

12.  On 8 May 2009, by letter responding to the applicant, a DFAS official acknowledged receipt of her request to have an election of former spouse coverage based on the court order, dated 19 August 2008.  However, the official notified the applicant that the statutory filing deadline has expired in her case.  Since her divorce was prior to the SM’s retirement, the post-retirement court order was invalid.

13.  On 14 May 2009, the Court of Appeals of the State of Washington rendered an opinion subsequent to the SM’s appeal of the post-dissolution clarification decision ordering him to designate his former spouse, the applicant, as the SBP beneficiary.  The Published Opinion rejected the SM’s argument that the applicant’s request to deem an election as a former spouse under the SBP was untimely and agreed that the 19 August 2008 amended decree of dissolution of marriage was the date from which the one year period contained in Title 10, U.S. Code, section 1450(f)(3)c).  This section of the law requires an election to occur within one year of the court order or filing involved.  In this case, the original decree did not address SBP designation.  The SBP designation was addressed for the first time in the August 2008 amended decree.  

14.  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.

15.  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.

16.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members including Reservists.

17.  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.

18.  Title 10, USC, section 1448 provides for application of the SBP.  It states:

	a.  Section 1448(a)(2)(A) (Standard annuity participants).  A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay. 

	b.  Section 1448(a)(2)(B) (Reserve Component (RC) annuity participants).  A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for RC retired pay, unless the person elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification. 

	c.  Section 1448(b)(2) (Former spouse coverage upon becoming a participant in the plan).  A person who has a former spouse upon becoming eligible to participate in the Plan may elect to provide an annuity to that former spouse.  In the case of a person with a spouse or a dependent child, such an election prevents payment of an annuity to that spouse or child (other than a child who is a beneficiary under an election under paragraph (4)), including payment under subsection (d).  If there is more than one former spouse, the person shall designate which former spouse is to be provided the annuity.  In the case of a person providing a RC annuity, such an election shall include a designation under subsection (e). 

	d.  Section 1448(b)(3) (Former spouse coverage by persons already participating in plan).  A person (i) who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and (ii) who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan, may (subject to subparagraph (B)) elect to provide an annuity to that former spouse.  Any such election terminates any previous coverage under the Plan.   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, dissolution, or annulment. 

	e.  Section 1448(b)(3)(b) A person may not make an election under subparagraph (A) to provide an annuity to a former spouse who that person married after becoming eligible for retired pay unless the person was married to that former spouse for at least one year, or that former spouse is the parent of issue by that marriage. 

	f.  Section 1448(b)(5) (Disclosure of whether election of former spouse coverage is required).  A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth whether the election is being made pursuant to the requirements of a court order; or whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as a part of, or incident to, a proceeding of divorce, dissolution, or annulment and (if so) whether such voluntary written agreement has been incorporated in, or ratified or approved by, a court order.

19.  Title 10, USC, section 1450 provides for payment of annuities-beneficiaries.  It states

	a.  Section 1450(f)(2) (Limitation on change in beneficiary when former spouse coverage in effect).  A person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect under Title 10, section 1448 (b) to provide an annuity to a former spouse (or to both a former spouse and child), or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election under paragraph (1) unless, of the following requirements, whichever are applicable in a particular case are satisfied:  In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person (i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and (ii) certifies to the Secretary concerned that the court order is valid and in effect. 

	b.  Section 1450(f)(3)(A) (Required former spouse election to be deemed to have been made---Deemed election upon request by former spouse).  If a person described in paragraph (2) or (3) of section 1448(b) of this title is required (as described in subparagraph (B)) to elect under section 1448(b) of this title to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:  (i) Request for the former spouse; a written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made; (ii) a copy of the court order or other official statement.  Either a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

	c.  Section 1450(f)(3) (Time limit for requests by former spouse).  An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person 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 timely filed a request for a deemed election for SBP former spouse coverage.

2.  The evidence of record shows that the SM and the applicant were married in January 1964 and were divorced in January 1990.  At the time of their divorce, the SM had not made an SBP election and was not yet eligible to make an SBP election.  Additionally, their divorce decree was silent with respect to the SBP.  
3.  The SM remarried on 1 September 1990.  He received his 20-year letter on 29 May 1996 and made an irrevocable SBP election for spouse coverage on 5 August 1996.  He also made an election for spouse coverage on 26 August 2002 in connection with his retirement at age 60.  Both forms indicate he elected spouse coverage.  His current wife has a vested interest in the SBP.

4.  When the SM made his RCSBP elections, he was not married to the applicant.  Their divorce decree did not order him to make a former spouse election and could not order him to make such an election.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the SM, which is a change the evidence of record shows he did not make.  Again, when the SM reached age 60, he was not married to the applicant and was under no obligation by the original divorce decree to maintain SBP coverage for his former spouse.  When the SM made his election, he was neither married to the applicant nor did the applicant have any legal claim to his SBP benefits.

5.  Nevertheless, the issue requires clarification of the SBP law:

	a.  Section 1448(b)(3) allows the military retiree to elect an annuity for a former spouse provided the divorce occurred after retirement and the former spouse was, at one time, a beneficiary under the SBP.  The retiree may elect former spouse coverage within one year after the date of the divorce.  In this case, the divorce occurred before retirement and the applicant (former spouse) was never an SBP beneficiary.

	b.  Section 1450(f)(3) allows the former spouse to request annuity coverage be deemed to have been made by the retiree.  A former spouse election can be deemed in a situation involving a retiree who has agreed in writing to provide annuity coverage if the agreement has been incorporated, ratified, or approved by a court order.  Coverage may be deemed if the retiree has been ordered by the court to make a former spouse election.  

6.  Notwithstanding the August 2008 order by the Superior Court of Washington that ordered that the SM continue SBP coverage until the death of one of the parties and, effective upon entry of this decree, to designate the applicant as the beneficiary under the SBP and the subsequent opinion by the Court of Appeals of the State of Washington, the applicant was not married to the applicant at the time he made his SBP election.  He could have elected not to participate in the SBP; all he needed was his spouse’s agreement, not his former spouse’s permission.


7.  The ABCMR may not correct the SM’s records to effectively award the applicant an SBP annuity, for so doing would deprive the SM’s current spouse of a property interest without the due process of law.  The ABCMR can, however, reconsider the applicant’s request if she obtains a court order, in a law suit, that includes the SM’s current spouse as a party that declares the applicant the proper recipient of the SBP annuity with greater rights than the current spouse.  In the alternative, the ABCMR would consider a reconsideration request if accompanied by a signed, notarized declaration from the SM’s current spouse renouncing any interest in the SBP annuity.  

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)                                         AR20090013464



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ABCMR Record of Proceedings (cont)                                         AR20090013464



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