IN THE CASE OF:	

		BOARD DATE:	13 May 2010  

		DOCKET NUMBER:  AR20090014647 


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 of a deceased former service member (FSM), requests payment of her former husband's survivor benefit annuity.

2.  The applicant states, in effect, that the Defense Finance and Accounting Service (DFAS) ignored the legal instructions of her divorce decree.  She states that the FSM was allowed by DFAS to elect if he wanted to pay into the spousal protection plan, violating the intent of the divorce decree.

3.  The applicant provides the following documents:

	a.  two personal statements, dated 12 August 2009 and 18 August 2009;

	b.  a letter from DFAS, dated 16 July 2009, requesting the applicant return overpayment of her former spouse's benefit due to delayed notification of his death;

	c.  death certificate, dated 28 June 2009; and

	d.  decree of dissolution of marriage and qualified domestic relations order, dated 17 February 1989

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 FSM was born on 1 December 1931.

3.  The FSM enlisted in the Regular Army on 12 September 1951 for a 3-year period.  He completed basic and advanced infantry training, then attended the Infantry Officer Candidate School at Fort Benning, GA.  He was honorably discharged for the convenience of the government to accept a commission on 18 September 1952.

4.  On 19 September 1952, the FSM accepted an appointment as a Reserve commissioned officer of the U.S. Army in the infantry branch and was ordered to active duty.  During combat operations in Korea, he sustained injuries from enemy artillery fire.  Upon his return, he was released from active duty on 19 January 1954 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

5.  On 29 June 1957, the FSM and the applicant married.

6.  The FSM served continuously in the USAR attaining the rank and grade of colonel/O-6.

7.  On 8 November 1969, the FSM completed a DA Form 1041 (Election of Options Under Retired Serviceman's Family Protection Plan) electing not to receive reduced retired pay in order to provide an annuity for his dependent(s).  This form also shows that his service for computation of basic pay was 18 years, 1 month, and 27 days.

8.  On 14 August 1975, the FSM received his retirement eligibility letter showing his entitlement for nonregular retired pay at age 60 based upon completion of 20 years or more of qualifying service.

9.  There is no record of a DD Form 1883 (Survivor Benefit Plan Election Certificate) in the FSM's official military personnel file.

10.  On 11 April 1978, the FSM was honorably discharged from the Ready Reserve.

11.  On 16 June 1988, the applicant's lawyer received a letter from DFAS stating that the FSM's military pay account revealed he met the requirements to receive retired pay at age 60 upon application.

12.  On 17 February 1989, the FSM and the applicant were divorced in Allen County, Indiana.  By court order, the FSM was ordered to provide Survivor Benefit Plan (SBP) coverage for his former spouse.  Additionally, the FSM was ordered to pay 29.99 percent of his retired pay to his former spouse on a monthly basis.

13.  On his 60th birthday, 1 December 1991, he retired from the USAR.  The applicant apparently began to receive her portion of the FSM's retired pay.

14.  The FSM's DFAS record shows he initially deferred SBP coverage.  Upon application for retired pay at age 60, he paid SBP premiums for 1 month until terminating payment of SBP on 1 January 1992, apparently because he had provided DFAS proof of his divorce.

15.  There is no record to show the applicant completed and filed with DFAS a request for deemed election within 1 year of her divorce from the FSM.

16.  On 28 June 2009, the FSM died.  The FSM's death certificate shows his marital status as divorced.

17.  The applicant submitted a letter from DFAS, dated 16 July 2009, stating she had to return overpayment of her former spouse's benefit due to the delayed notification of the FSM's death as evidence to support her application.

18.  References:

	a.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.  The law further provided that retiring members and spouses were to be informed of SBP options and effects and that premium deductions continued after loss of spouse.

	b.  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.  An open season for enrollment was established from 1 October 1978-30 September 1979 and later extended to 31 March 1980.

	c.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses' Protection Act 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.

	d.  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.  Based on the evidence of record, the FSM complied with part of the divorce decree by providing his former spouse with a partial financial payment of his retired pay.  In addition, within the divorce decree filed with DFAS were instructions for the FSM to provide for an SBP annuity for his former spouse upon his death.  As the applicant was receiving a partial payment of her former spouse's retired pay based on filing the divorce decree, it is reasonable to assume she thought she had made a deemed election for an SBP annuity upon the death of the FSM.

2.  The evidence shows the FSM did pay SBP annuity premiums for 1 month, then for unknown reasons he stopped paying the SBP annuity premiums.

3.  As a matter of law, the applicant is not entitled to relief, for no deemed election was filed by the applicant or the FSM within 1 year of their divorce.   However, as a matter of equity it would be in the interest of justice to correct the FSM's record to show she made a former spouse deemed election within 1 year of their divorce.

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:

	a.  showing the applicant requested a deemed election of the SBP and sent it to the proper office on 17 February 1989 and that it was received and processed by the proper office in a timely manner;

	b.  advising the applicant that DFAS will collect any SBP costs due associated with this decision; and

	c.  paying to the applicant an annuity based upon the above corrections retroactive to 28 June 2009, the date of the FSM's death.



      ___________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)                                         AR20090014647



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ABCMR Record of Proceedings (cont)                                         AR20090014647



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