IN THE CASE OF:	  

		BOARD DATE:	    27 May 2010

		DOCKET NUMBER:  AR20090019162 


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, in effect, correction of the records of her former spouse, a former service member (FSM), to show he filed a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of the court order awarding her the coverage. 

2.  The applicant states the following:

     a.  There was no reference made to providing a copy of a divorce decree to the Defense Finance and Accounting Service (DFAS) in any of the pre-retirement briefings she attended with her husband.

     b.  During retirement out-processing the FSM named her as the beneficiary of his SBP annuity.  No reference was made to providing DFAS a copy of the divorce decree within 1 year in the event of a divorce. 

     c.  An e-mail from the FSM indicates the applicant is still the beneficiary of his SBP annuity and that there was a lack of knowledge of the requirement to provide a copy of the divorce decree to DFAS within 1 year.

     d.  The applicant contacted the Fort Lewis Retirement Services Office and was mailed a DD Form 2293 (Application for Former Spouse Payments from Retired Pay).  She completed the form and sent it to DFAS.  



     e.  On 30 June 2009, the applicant received correspondence from DFAS denying her request for former spouse coverage.  She requested advice on the appeals process and did not receive a response.  

     f.  The Fort Lewis Retirement Services Office recommended she appeal to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides the following:

* an e-mail from the FSM dated 21 April 2009
* a copy of a completed DD Form 2293
* copies of correspondence between the applicant and DFAS
* an Army Retirement Services summary of the Uniformed Services Former Spouses' Protection Act
* the applicant's divorce decree
* the applicant's marital property settlement agreement
* a copy of a completed DD Form 2656 (Data for Payment of Retired Personnel)
* an e-mail stating the FSM has not remarried dated 
21 May 2010

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant married the FSM on 1 September 1979.

2.  After a period of active service in the U. S. Air Force, the FSM attended Officer Candidate School and he was appointed as a second lieutenant in the Army.  He entered active duty on 27 July 1979.   

3.  In January 2004, the FSM submitted a request for voluntary retirement.  In connection with his request, he completed a DD Form 2656 and indicated that he was married and had dependent children.  He further elected spouse and children SBP coverage with a reduced base amount.  The applicant and the FSM certified the election with their signatures on the form.

4.  The FSM was honorably retired on 31 December 2004, in the rank of colonel.

5.  On 7 June 2007, the applicant and the FSM entered into a marital property settlement agreement wherein he agreed to pay the premiums for SBP and list the applicant as the beneficiary.  The parties' 19 June 2007 dissolution of marriage incorporated the terms of the property settlement.

6.  There is no evidence in the FSM's record that shows he submitted a request to DFAS to change his SBP coverage to former spouse coverage or that the applicant requested a deemed election within 1 year of their divorce.

7.  The applicant submits the following:

     a.  An e-mail from the FSM, dated 21 April 2009, in which he indicates the applicant did not submit the divorce decree to DFAS within 
1 year of the divorce.  This e-mail also indicates his monthly statement had not changed to reflect the divorce and that he tried to make the necessary changes but he learned DFAS needed the information from the applicant.

     b.  A letter written to DFAS, dated 13 May 2009, shows the applicant indicated that she did not know she needed to submit a copy of the divorce decree within 
1 year of the divorce.  She also provided DFAS an application for former spouse payments and a copy of the divorce decree.  

     c.  A letter from DFAS Retired and Annuity Pay, dated 30 June 2009, informed the applicant her request for former spouse coverage to be deemed was received in excess of the 1-year period following the date of the court order awarding her SBP coverage.  The letter further informed her SBP coverage would not be implemented because the statutory filing deadline had expired.

8.  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.

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

10.  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.

11.  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's contention that the FSM's record should be corrected to show she filed an application for former spouse SBP coverage to be deemed within 
1 year of the court order awarding her the coverage is supported by the facts and circumstances of this case.

2.  The available evidence shows prior to retirement in 2004, the FSM elected spouse and children SBP coverage with a reduced base amount.  The applicant and the FSM were divorced on 19 June 2007.  The settlement agreement stipulated the FSM would pay the SBP premiums and list the applicant as the beneficiary.  

3.  There is no documentary evidence showing the applicant submitted the necessary forms to change the FSM's SBP election from "spouse" to "former spouse" within 1 year of the divorce.  However, there is evidence the FSM attempted to make changes and he was informed by DFAS the applicant should submit the request.  

4.  Although the applicant's request for a former spouse deemed election was not made within 1 year of the divorce a court had ordered the former spouse coverage.  In addition, it appears the FSM desires to honor the terms of the divorce.  As a matter of equity, it would be appropriate to correct the records to show the applicant timely requested a deemed election as a former spouse, especially since the FSM has not remarried and no one has an interest in SBP superior to that of the applicant.  

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 filed a timely request for a deemed election for former spouse coverage under the SBP.




      ________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)                                         AR20090019162



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ABCMR Record of Proceedings (cont)                                         AR20090019162



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