IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090019707 


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 correction of his records to show his former spouse made a deemed election under the Survivor Benefit Plan (SBP) within one year of their divorce.

2.  The applicant states his former spouse did not make a deemed election within one year of their divorce as required.  He states, in effect, that to comply with the court order to provide his former spouse with survivor benefits, he must submit an application to correct his record to show she timely filed with the Defense Finance and Accounting Service (DFAS).  In addition, he states he does not agree with the action of the court and that he should not be punished because of her neglect.  He concludes by stating he believes his records are in order.

3.  The applicant provides a copy of his divorce decree and an information sheet from Retirement Services outlining the procedures for changes due to divorce after retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 July 1982 for a 4 year period.  He completed his initial entry training and was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The applicant served continuously on active duty and was promoted to pay grade
E-5. 



2.  The applicant married on 30 June 1990.

3.  He was placed on the Temporary Disability Retired List (TDRL) on
16 December 2005 and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).  He elected SBP spouse only coverage at that time.

4.  On 8 September 2006, the applicant and his spouse were divorced.  The divorce decree shows the applicant had voluntarily agreed to provide survivor benefits to his former spouse with a stated requirement for him to "EXECUTE SUCH DOCUMENTS TO THIS END."  Additionally, the applicant agreed to provide his former spouse with 35 percent (%) of his gross retired pay from his service in the U.S. Army.

5.  On 5 March 2009, the applicant was retired due to a permanent physical disability.

6.  In response to an inquiry from the staff of the ABCMR, DFAS stated they received the applicant's divorce decree on 23 June 2009, with the date of divorce of 9 September 2006.  Within the divorce decree, the applicant was ordered to elect the maximum military SBP with the former spouse being his beneficiary.  No election from the applicant or a deemed election from the former spouse was filed within one year of their divorce.  Currently, the applicant's SBP account reflects no beneficiary.

7.  In a telephone conversation with the staff of the ABCMR, the applicant stated he had remarried on 28 August 2007.

8.  Public Law 92-425, 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 for former military spouses for retiring members.  

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



11.  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.

12.  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 one 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.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was temporarily retired due to a disability in 2005.  In 2006, the applicant and his first wife divorced with the divorce decree stipulating that the applicant was to provide his former wife with survivor benefits under the SBP.

2.  It is recognized that the divorce decree awarded the SBP to the former spouse and specifically ordered the applicant to timely execute all documents necessary to maintain the former spouse's designation as a former spouse SBP beneficiary.  Based on the evidence of record, the applicant did not take the 
action directed by the court, nor did the former spouse make a request for a deemed election of the SBP within one year of their divorce settlement.

3.  The applicant remarried in August 2007.  The Board may not divest the current spouse's interest in the applicant's SBP without an order from the State court of competent jurisdiction over the marriage of the former spouse and applicant.  This court action would have to include the current spouse as a party in order to protect her property interests and rights.  In the alternative, and to avoid litigation, the applicant's current spouse could voluntarily relinquish her SBP interest in favor of the applicant's former spouse by executing a notarized statement to that effect.

4.  In view of the facts of this case, regrettably, there is insufficient evidence that would warrant granting the relief requested at this time. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  ___X____  __X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20090019707



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019707



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1