IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090017452 


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 show he elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with his divorce.

2.  The applicant states his former spouse has always been his beneficiary and his Retiree Account Statement reflects her date of birth under the SBP Coverage section.  

3.  The applicant provides the following documents:

* Retiree Account Statement (RAS), dated 10 December 2008
* Counsel's letter, dated 26 August 2009
* Divorce Decree

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s former spouse be established as his SBP beneficiary as ordered in their divorce decree.

2.  Counsel states the divorce decree contains the express provisions with respect to the SBP that satisfies any written request requirement for changing the applicant's SBP election from spouse to former spouse.  Counsel also indicates the applicant's RAS reflects the former spouse’s birth date and confirmed there was no cost for SBP coverage because it was paid up.  Counsel also indicates 

the Defense Finance and Accounting Service (DFAS) notified the former spouse by letter, dated 3 February 2009, that former spouse SBP coverage was not available.

3.  Counsel provides a copy of the applicant’s Decree of Dissolution of Marriage (divorce decree).

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.  On 31 October 1976, the applicant was honorably retired from military service, in the rank of chief warrant officer three (CW3), after completing 20 years, 
1 month, and 8 days of active military service.  A DA Form 4240 (Data for Payment of Retired Army Personnel) he completed at the time of his retirement shows he elected spouse and children SBP coverage at a reduced amount.

3.  On 25 February 1994, the Superior Court of the State of Washington for Pierce County, WA finalized a Decree of Dissolution of Marriage.  Paragraph 3.13, subparagraph 8 of page 4 of this document confirms the applicant’s spouse would remain the beneficiary of his SBP and the existence of the divorce decree signed by the applicant would satisfy any requirement to submit a written deemed election for former spouse coverage.  Both the applicant and the FSM authenticated this document with their signatures.

4.   The applicant provides a copy of his RAS showing his spouse only SBP coverage was paid up.  It also included the spouse’s date of birth (9 February 1941).  However, it did not indicate former spouse coverage

5.  On 30 April 2010, a staff of the Board contacted the applicant by phone to inquire if he remarried and he indicated he did, 3 years after divorcing his former 

spouse.  The staff member advised the applicant to provide a letter from his current spouse indicating her agreement to relinquish her right to SBP coverage.

6.  On 20 May 2010, the applicant provided a notarized disclaimer signed by his current spouse indicating she disclaimed all interest in the SBP in favor of the applicant’s former spouse as indicated in the Decree of Dissolution.

7.  Public Law 92-425, the SBP, enacted on 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.

8.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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 was still on active duty and had not yet made an SBP election.

11.  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.  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.  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 request to change his SBP coverage from spouse only to former spouse has been carefully considered and found to have merit.

2.  The divorce decree issued for the applicant and his former spouse contains a provision stating the Decree of Dissolution would satisfy the applicant’s requirement for the applicant to submit a written request to change his initial election of SBP coverage from spouse to former spouse; or for the former spouse to submit a deemed election of former spouse coverage.

3.  Based on the language outlined above, the applicant believed the divorce decree was sufficient to change his SBP election to former spouse.  However, the divorce decree was not accepted by DFAS as a change of SBP election and because the applicant did not submit a separate request to change his SBP election to former spouse and the former spouse did not submit a formal deemed election request within 1 year of the divorce, the SBP election has never been changed.

4.  By law, incident to a proceeding of divorce, a member with existing SBP coverage has one year to provide an annuity to a former spouse by making such an election.  The applicant failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce.

5.  The evidence of record confirms the applicant initially elected SBP coverage for “spouse and children” at the time of his retirement.  Subsequently, the applicant and his former spouse were divorced on 25 February 1994.  Both parties agreed to comply with the terms of the divorce decree, which included the former spouse’s entitlement to continued SBP coverage and this was included and incorporated into the divorce decree.  Premiums were continually deducted from the applicant's retired pay for "spouse only" coverage until such time the total cost for this coverage was paid in full.

6.  In addition, the applicant provided a notarized disclaimer signed by his current spouse indicating her concurrence to voluntarily waive her interest in the SBP and to provide this coverage to the former spouse as indicated in his divorce decree.

7.  In view of the facts of this case, it is clear the applicant intended to comply with the divorce decree by providing SBP coverage for his former spouse and believed this was accomplished through the divorce decree.  Therefore, it is appropriate and will serve the interest of justice and equity to correct the applicant's record to show he changed his SBP election from spouse to former spouse on 25 February 1994, in conjunction with his divorce as directed in the divorce decree.

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 requested that his SBP spouse coverage be changed to former spouse coverage on 25 February 1994, the date of their divorce, and that his request was received and processed by the appropriate office in a timely manner.



      _______ _   _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)                                         AR20090017452



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ABCMR Record of Proceedings (cont)                                         AR20090017452



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