IN THE CASE OF:	  

		BOARD DATE:	    3 August 2010

		DOCKET NUMBER:  AR20090019814 


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, that the records of her former spouse, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for "former spouse."  She also requests that she be awarded 50 percent of his retirement pay vice the 30 percent that she was awarded in the divorce decree.

2.  The applicant states she is entitled to SBP coverage.  She maintains that she was unaware of the "deemed election" requirement within 1 year of their divorce.  
3.  The applicant provides a copy of the following: 

* A  memorandum, subject:  Garnishment of Pay, dated 24 September 1990
* A copy of the final divorce decree, dated 21 June 1990
* A copy of the FSM's 31 May 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty
* A copy of her marriage license, dated 23 January 1979
* A copy of the FSM's retirement orders, dated 18 February 1998
* Letter of Notification, dated 9 May 1998  







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 request for an increased portion of the FSM's retirement pay (from 30 to 50 percent) does not fall within the purview of this Board's authority as it is not a correction.  It is a request to amend the divorce decree.  Therefore, it will not be further addressed in these Proceedings.

3.  The FSM and the applicant were married on 3 June 1978 and the FSM enlisted in the Regular Army on 27 March 1979. 

4.  On 21 June 1990, the applicant and the FSM divorced.  The divorce decree shows as part of the settlement agreement, the FSM was ordered to pay the applicant child support and 30 percent of his military retirement pay upon retirement.  The FSM was also ordered to provide an SBP annuity for the applicant as his "former spouse."  The divorce decree ordered that the FSM "shall not, during his lifetime, revoke, modify, amend, withdraw, or in any other form alter the election to provide the Armed Services Survivor Benefit Plan for the benefit of [applicant], which presently would pay her on the death of the [FSM]."  The divorce decree also ordered that the SBP premiums would be paid out of the applicant's share of the FSM's military retirement pay.

5.  On 24 September 1990, the Defense Finance and Accounting Service (DFAS) notified the applicant that garnishment of the FSM's pay had been accomplished based on a court order for child support.

6.  On 9 May 1998, the applicant notified DFAS of the FSM's scheduled retirement in May 1998.  She requested that she receive 30 percent of his retirement pay in accordance with her enclosed divorce decree.  



7.  The FSM's records show he was honorably retired on 31 May 1998 and transferred to the retired list in his retired rank of Staff Sergeant (SSG)/E6 on 
1 June 1998.  He was credited with 19 years, 4 months, and 6 days for basic pay.

8.  Information provided by DFAS verifies the FSM declined SBP coverage when he retired and his current wife concurred.  The DFAS representative indicated that there was no election for the applicant.

9.  On 9 July 2010, the analyst notified the applicant of the provisions that require her to pay the SBP premiums from her portion of the FSM's retirement pay.  On 10 July 2010, the applicant faxed a statement to the ABCMR acknowledging she is willing to pay the SBP premiums from her portion of the FSM's retirement pay.

10.  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.

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 contends the FSM's records should be corrected to show he elected SBP coverage for "former spouse" pursuant to their June 1990 divorce decree.

2.  The available evidence shows that as part of the divorce settlement agreement, the FSM was required to elect former spouse SBP coverage for the applicant and she was obligated to pay SBP premiums from her portion of the FSM's retirement pay.  However, upon retirement the FSM declined SBP coverage and his current wife concurred.  

3.  The applicant states she was unaware of her requirement to make a deemed election for SBP coverage within 1 year of the divorce.  The available evidence shows the applicant notified DFAS of her entitlement to receive 30 percent of the FSM's retirement pay and provided DFAS a copy of the divorce decree prior to the FSM's retirement.  Therefore, it is reasonable to presume that if the applicant had been aware of the requirement to make a deemed election she would have.  
4.  Based upon the SBP award in the final divorce decree, it would be equitable and just to correct the FSM's records to show he elected SBP coverage for former spouse.  Additionally, the applicant should be required to pay SBP premiums from the effective date of the FSM's retirement, 1 June 1998. 

BOARD VOTE:

____x____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to show the FSM elected to participate in the SBP for former spouse coverage, full base amount, on 
1 June 1998; and

2.  Advise the FSM that DFAS will be instructed to collect any SBP premiums that may be due as a result of this action from the applicant's portion of the FSM's retirement pay (30 percent) as of the date the FSM was placed on the retired 
list (1 June 1998).



      _______ _   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)                                         AR20090019814



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ABCMR Record of Proceedings (cont)                                         AR20090019814



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