IN THE CASE OF:	

		BOARD DATE:	 6 April 2010 

		DOCKET NUMBER:  AR20090016527 


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 his record be corrected to list his former spouse as his Survivor Benefit Plan (SBP) beneficiary as directed in a Military Qualifying Court Order.

2.  The applicant states that the denial of SBP benefits for his former spouse is unjust because it is contrary to the intentions of himself, the Court, and his former spouse.  He states that the result of this injustice is significant in that it leaves his former spouse financially vulnerable after his death when she is entitled to these benefits after she sacrificed more than 30 years during their marriage in taking pension less jobs to support his military career.  It has cost him more than $11,000 in premium payments that will not benefit anyone else.

3.  The applicant provides a self-authored statement; Decree of Divorce; a Findings of Fact, Conclusions of Law and Judgment; State of Alaska, Fourth Judicial District Court Order; Defense Finance and Accounting Service (DFAS) letter, dated 22 January 2009; Retiree Account Statements; third-party letter; and DFAS letters, dated 17 February 2009 and 11 June 2009.

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 applicant's record shows he served on active duty for 27 years, 2 months, and 24 days until being retired in the rank/grade of sergeant major (SGM)/E-9 on 
30 September 1998.

3.  On 13 June 1971, the applicant and former spouse were married.

4.  On 6 March 1998, a DA Form 2339 (Application for Voluntary Retirement) was completed by the applicant.  In conjunction with his retirement processing, the applicant completed an SBP election certificate in which he elected SBP for "Spouse Only" coverage, naming his now former spouse as the beneficiary.

5.  On 30 September 1998, the applicant was retired by reason of sufficient service for retirement and placed on the retired list.

6.  On 8 January 2003, the applicant and his now former spouse were divorced.

7.  On 2 December 2003, the Superior Court for the State of Alaska, Fourth Judicial District ordered the applicant to elect his former spouse as his irrevocable beneficiary of the SBP by a deemed "Former Spouse" election.

8.  On 27 October 2009, the applicant completed a DD Form 2656-1 (Data for Payment of Retired Personnel), in which he elected “Former Spouse” coverage and named his now former wife as beneficiary.  

9.  On 22 January 2009, in response to an application for payment from the former spouse DFAS informed her that if her divorce decree specified that she was to be designated as a "former spouse" beneficiary for the SBP she must make a "deemed election" for SBP coverage within one year of the date of her divorce directly to the Retired Pay office.

10.  On 28 January 2009, the former spouse submitted a letter to DFAS deeming her election as the "Former Spouse" beneficiary.  She requested that since she was unaware of the fact that she had to make a deemed election by January 2004, that she be advised as to what her status concerning the SBP and what action she needed to take to rightfully be considered the beneficiary.

11.  On 17 February 2009, in response to the former spouse's deemed election, DFAS informed her that a spouse loses eligibility as an SBP beneficiary upon divorce and that there were no provisions which make "former spouse" coverage an automatic benefit.  DFAS further informed her that a deemed election must be received within one year of the date of the court order which awarded the coverage.  Therefore, since the statutory date had expired, an election of former spouse coverage could not be deemed to have been made and former spouse coverage will not be implemented.

12.  On 11 June 2009, in response to a congressional inquiry the Deputy Director, DFAS informed the Member of Congress that the former spouse was not eligible to receive SBP benefits based on the fact that she did not make a deemed election within one year of her final divorce decree.  This official further informed the Senator that the former spouse could submit an application to this Board requesting she be designated as the "Former Spouse" beneficiary of the applicant's SBP annuity.

13.  The applicant provides copies of his Retiree Account Statements for the periods December 2003, December 2005, and December 2007.  These documents show the applicant was paying SBP premiums for "Spouse Only" coverage.

14.  On 1 February 2010, DFAS reimbursed the applicant his total SBP premiums for the period 26 January 2003 through 31 December 2009, for a total of $16,075.56.

15.  In connection with this case a staff member of the Board contacted the applicant to determine if he had remarried and to further inform him that if his request was approved by the Board he would be required to return the amount DFAS reimbursed to him and possibly additional payments.  The applicant stated he had not remarried and that he understood that he would have to return the amount reimbursed to him by DFAS.

16.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

17.  Public Law-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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, U. S. Code, section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f) (3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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's contention that his former spouse should be the beneficiary for his SBP as the "Former Spouse" as directed in the Military Qualifying Court Order of 2 December 2003 was carefully considered and found to have merit.

2.  The evidence of record confirms that a Military Qualifying Court Order decree for the applicant and former spouse, which was issued by the Superior Court for the State of Alaska Fourth Judicial District, Fairbanks, Alaska, on 2 December 2003, ordered the applicant to pay SBP premiums for his former spouse.  

3.  The evidence of record clearly shows it was always the intent of the applicant to cover his former spouse under his SBP election as directed by the court order as evidenced by the Retiree Account Statements he provides for the periods December 2003, 2005, and 2007, which show he continually paid the SBP premiums.  Further, he has not remarried so no one has a vested interest superior to that of his former spouse.

4.  The evidence of record also shows that prior to receipt of a DFAS letter, dated 22 January 2009, in response to the former spouse's application for payment of a portion of the retired/retainer pay which informed her that she had to make a 
deemed election within one year of the date of her divorce, that both she and the applicant were under the impression that SBP coverage was continued as a former spouse, as ordered by their court order.  As a result, it would be appropriate to correct his record to show that on 8 January 2003 he properly submitted a request to change his SBP election from "Spouse" to “Former Spouse” coverage, and to designate his former spouse as the valid beneficiary for his SBP benefit at this time.  All premiums due as a result of this change should be collected accordingly.

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 timely notified DFAS of his divorce and change of his Survivor Benefit Plan election from “Spouse Only” to “Former Spouse” coverage, effective 8 January 2003, and

   b.  showing DFAS timely received and processed his change of SBP election.



      ___________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)                                         AR20090016527



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ABCMR Record of Proceedings (cont)                                         AR20090016527



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