IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090014111 


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 she and the SM were divorced in July 2003 and their divorce decree stipulated that she would remain the beneficiary as his former spouse in case of his death.  She adds that she submitted all necessary paperwork in 2003 and 2004 to the Defense Finance and Accounting Service (DFAS).  However, according to DFAS officials, she has been removed as a beneficiary and her former spouse status was replaced with the SM's current spouse whom he married in 2006.  She adds that DFAS officials told her that their records only date back to 2006 and therefore all her information from 2003 through 2006 is missing.  She is entitled to the SBP annuity in case of death based on her divorce agreement.

3.  The applicant provides a copy of her divorce decree, dated 14 July 2003; a copy of her domestic relations order, dated 1 July 2003; a copy of her marriage register, dated 30 August 1969; a copy of a letter, dated 18 September 2003, from her attorney to DFAS-London, KY; a copy of another letter, dated 18 September 2003, from her attorney to DFAS-Cleveland, OH; a copy of a letter, dated 17 October 2003, from DFAS-Cleveland to her; a copy of her letter, dated 20 December 2003, to DFAS-Cleveland; a copy of her letter, dated 6 June 2004, to DFAS-Cleveland; a copy of her letter, dated 10 July 2009, to 
DFAS-London; a copy of DFAS letter, dated 15 July 2009, to her; and a copy of a U.S. treasury check, dated 3 August 2009, 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.  The SM's records show he was born on 3 May 1946 and was appointed as a second lieutenant and entered active duty on 7 June 1967.  He married his spouse H____, the applicant, on 30 August 1969.

3.  The SM's records further show he served in various command and staff positions and was honorably discharged on 30 September 1981.  He was subsequently appointed as a major in the U.S. Army Reserve (USAR) on 1 October 1981 and attained the rank of colonel (COL) on 7 December 1989.

4.  On 5 May 1990, the USAR Personnel Center (now known as the U.S. Army Human Resources Command-St. Louis or 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.

5.  On 2 August 1990, the SM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was married to "H____" and had one dependent child D____, who was born on 17 September 1974.  He further elected "spouse and children" coverage, based on the full amount, option C (immediate coverage), under the Reserve Component (RC) SBP.

6.  On 1 July 2003, the SM and the applicant entered into a domestic relations order (DRO) in which it was agreed that the applicant would be designated as a former spouse surviving beneficiary under the SBP at the full amount and that said designation would be made both prior to pay status and after pay status.  It also stipulated that notice of this coverage would be made promptly after entry of the domestic order to DFAS-London.

7.  Also on 1 July 2003, a separation and settlement agreement was made and entered between the applicant and the SM agreed that the SM's military pension would be divided evenly between the parties pursuant to the approved DRO and that the said approved DRO would be signed by the parties upon the execution of the agreement.  It stipulated that the SM would take all necessary steps to put this pension into pay status upon his 60th birthday.  Additionally, the property settlement agreement was incorporated, but not merged, into a decree of divorce that was approved on 13 July 2003.

8.  On 18 September 2003, by letters to DFAS-London and DFAS-Cleveland, the applicant's attorney forwarded certified copies of the approved DRO.  The attorney indicated that DFAS officials should note that "wife is to be survivor beneficiary (100 percent)."

9.  On 17 October 2003, by letter to the applicant, a DFAS-Cleveland official indicated receipt of the application for payment of a portion of the SM's retired/
retainer pay.  The official reminded the applicant that if her divorce decree specified that she were to be designated as a former spouse beneficiary for the SBP, she must make a "deemed election" for SBP coverage within 1 year of the date of the divorce directly to DFAS-London.

10.  On 20 December 2003, the applicant notified DFAS officials of a change in her address by letter to DFAS-Cleveland.

11.  On 6 June 2004, the applicant again notified DFAS officials by letter to DFAS-London that she was the SBP beneficiary of the applicant's military pension plan and that she had not received the information that designated her as beneficiary.  She also noted her change of address.

12.  On 20 December 2005, the SM married his second spouse E____.

13.  On 28 April 2006, 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 E____ and elected spouse and children SBP coverage based on full gross pay.  He authenticated this form by placing his signature in the appropriate block.  It is also noted that his spouse E____ authenticated this form as the witness.

14.  On 5 June 2006, USAHRC-St. Louis published Orders P06-686011 announcing the applicant's retirement from the USAR in the rank of COL effective 3 May 2006, the date he turned age 60.

15.  On 10 July 2009, the applicant complained by letter addressed to DFAS-London that she had learned that there was no record of her and her attorney's letters to DFAS regarding her designation as the SBP beneficiary.  She further attached copies of her divorce decree and stated that she had requested a deemed election within 1 year of her divorce.

16.  On 15 July 2009, an official at the DFAS Retired and Annuity Pay indicated by letter that the applicant is receiving a portion of the SM's retired pay in the gross monthly amount of $2,157.00.

17.  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.

18.  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.

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

20.  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.

21.  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.

22.  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 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 and the SM were married on 30 August 1969 and divorced on 1 July 2003.  At the time of their divorce, the SM had an SBP election in effect for spouse and children coverage.

3.  In their property settlement agreement, which was incorporated, but not merged, into a decree of divorce that was approved on 13 July 2003, it was agreed that the applicant would be designated as a former spouse surviving beneficiary under the SBP at the full amount.

4.  The applicant and her attorney communicated with DFAS officials in London, KY, and Cleveland, OH, and provided copies of the certified agreement.  Additionally, although the applicant's letter to DFAS did not specifically state the word "deemed election," both she and her attorney made it clear to DFAS officials that she is the designated beneficiary according to the divorce decree.

5.  The evidence of record further shows that the SM remarried on 20 December 2005 and elected full SBP coverage for his new spouse when he applied for retired pay in 2006.  However, he was under obligation by the original divorce decree to maintain SBP coverage for his former spouse.  He chose otherwise and established SBP coverage for his new spouse, a clear error and injustice.

6.  In view of the foregoing evidence, there is sufficient proof to indicate the applicant submitted the necessary paperwork to establish a deemed former spouse SBP election within the prescribed time frame after her divorce.  Therefore, in the interest of justice, it would be equitable to correct the records to show the applicant made a request for a deemed election for former spouse beneficiary 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 the applicant made a request for a deemed election for former spouse beneficiary within 1 year of her divorce to the SM on 1 July 2003 and that DFAS effected the change.



      ___________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)                                         AR20090014111



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ABCMR Record of Proceedings (cont)                                         AR20090014111



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