IN THE CASE OF:	  

		BOARD DATE:	  23 October 2010

		DOCKET NUMBER:  AR20100007450 


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:

The applicant, the former spouse of a former service member (FSM), defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the FSM's records to show he elected former spouse Survivor Benefit Plan (SBP) coverage.

2.  Counsel states, in effect, that the FSM divorced the applicant on 
24 September 2003.  The divorce decree indicated that the FSM elected to provide the applicant with survivor benefits under the SBP, and the FSM shall not change his election.  "Should the Wife predecease Husband, then her rights under this Order shall cease and Husband shall be entitled to receive his total pension benefits."

3.  Counsel states that an amendment to the original divorce decree was executed on 4 August 2009.  The amendment indicated that the FSM was ordered to continue to elect the applicant and provide her with SBP benefits.  Counsel states that on 26 September 2009, the applicant provided the Defense Finance and Accounting Service (DFAS) a written deemed election for former spouse SBP coverage based on the amendment.  Counsel states that DFAS denied the applicant's deemed election based on the provision that she did not request former spouse SBP coverage within the one year statutory period from the date of the court order awarding the coverage.  

4.  Counsel states the applicant's deemed election for former spouse SBP was within the one year statutory period of the 4 August 2009 divorce decree amendment and to deny the applicant former spouse SBP coverage would be an error. 

5.  Counsel provides:

* Circuit Court of Harford County, MD, Complaint to Enforce Separation and Property Settlement Agreement, dated 24 September 2003
* Circuit Court of Harford County, Judgment of Absolute Divorce, dated
24 September 2003
* Circuit Court of Harford County, Constituted Pension Order, dated
4 August 2009
* Circuit Court of Harford County, Amendment to Judgment of Absolute Divorce, dated 4 August 2009
* Memorandum to DFAS from the applicant, dated 26 September 2009
* DFAS Retiree Account Statement for the pay period November 2009 through December 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 FSM was born on 24 January 1943.  On 28 June 1965, he was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (2LT).  He attained the rank of lieutenant colonel (LTC).

3.  On 26 August 1967, the applicant and FSM were married.

4.  The FSM’s notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 22 January 1986.  

5.  On 12 March 1986, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  On this form he indicated that he elected full spouse and children SBP coverage.

6.  On 27 July 1993, the FSM retired and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).  

7.  On 24 January 2003, the FSM turned 60 and he was eligible to receive retired pay.

8.  On 24 September 2003, the FSM and the applicant divorced.  The Complaint to Enforce Separation and Property Settlement Agreement and Judgment of Absolute Divorce, issued by the Circuit Court for Harford County, states that "Husband has already elected to provide Wife with survivor benefits under the Survivor Benefit Plan, and Husband shall not change this election.  This agreement and any Constituted pension Order entered pursuant hereto shall be interpreted in light of the Uniformed Services Protection Act (the Act"), codified at 10 USC 1408 [Title 10, U.S. Code, section 1408], as amended.  Should the Wife predecease Husband, then her rights in this Order shall cease and the Husband shall be entitled to receive his total pension benefits."

9.  There is no indication that the FSM changed his SBP coverage from "spouse" to "former spouse" coverage, but he continued to pay SBP premiums.  There is also no evidence the applicant submitted a deemed election request within one year.

10.  On 4 August 2009, the Circuit Court for Harford County, executed an Amendment to Judgment of Absolute Divorce and a Constituted Pension Order in which both the FSM and applicant agreed.  The Constituted Pension Order states that, "The Court hereby orders that the Former Spouse shall be treated as Member's irrevocable beneficiary under the Survivor Benefit Plan ("SBP").  The Member shall be required to make the necessary election in a timely manner to effectuate the SBP coverage for the Former Spouse and shall execute such paperwork as is required.  The level of SBP coverage required for the Former Spouse shall be that which will provide her with the same benefit payments after the Member's death that she was eligible to receive or was receiving before his death."

11.  By memorandum to DFAS, dated 26 September 2009, the applicant made a deemed election for former spouse SBP coverage as stated in the Amendment to Judgment of Absolute Divorce and a Constituted Pension Order.

12.  By memorandum to the applicant, dated 8 December 2009, DFAS denied her deemed election for former spouse SBP coverage based on the fact that the law does provide for an election to be deemed on the basis of a court order or court approved agreement.  However, the document further stated, a deemed election request may only be filed by the former spouse or the former spouse's attorney within one year of the date of the court order which awarded the SBP coverage (24 September 2003).

13.  A memorandum, dated 10 December 2009, to the FSM from DFAS shows that DFAS changed the FSM's SBP coverage from spouse to no beneficiary after learning neither the FSM nor the applicant made a deemed election to change SBP coverage from spouse to former spouse within one year of the
24 September 2003 divorce.  The DFAS memorandum states, “An adjustment is being made in the Survivor Benefit Plan (SBP) portion of your retired pay account based on your divorce decree.  This adjustment in your coverage is from spouse based on the full amount of $2,324.95 to no beneficiary based on the full base amount $2,327.95 with an effective date of September 24, 2003.  As a result of this adjustment your SBP cost has been changed to $0.00.  This change will be reflected in your check, dated January 4, 2009.  Due to the six (6) year barring statute, the effective date of the change to your SBP cost is November 10, 2003, which is six (6) years from the date your notification was received by the Defense Finance and Accounting Service - Cleveland Center.”  The change shows the FSM was overcharged for SBP in the amount of $16,147.19.

14.  On 14 September 2010, a staff member of the Board contacted DFAS to find out whether the FSM had remarried since his divorce on 24 September 2003.  DFAS indicated the FSM's records show he had not remarried and had no beneficiaries.

15.  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.

16.  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.  Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members and Reserve members.

17.  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 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 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.

19.  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 evidence of record shows that upon receiving his 20-year letter, the FSM elected full SBP spouse coverage.  Furthermore, he and the applicant were divorced on 24 September 2003 and their divorce decree stipulated that she would remain the designated beneficiary of his SBP.  There is no indication that the FSM or the applicant submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.  However, the applicant submitted a copy of a letter addressed to DFAS on 26 September 2009, within 1 year of her 4 August 2009 amended divorce decree, requesting the SBP coverage be deemed to her as a former spouse.  DFAS denied her request based on her not submitting the request within one year of the original 
24 September 2003 divorce decree.  

2.  SBP elections are made by category, not by name.  Once the applicant and the FSM were divorced, she was no longer his spouse.  Nevertheless, the FSM was required to make a former spouse election as stipulated in the initial divorce decree within 1 year of the divorce.  He did not do so, but he continued to pay SBP premiums.  In both the initial and amended divorce decree, the FSM agreed to continue to elect and provide SBP for his former spouse.  It appears that the applicant was not aware of her option to make a deemed election under the

provisions of Title 10, U.S. Code, section 1448(b)3, at the time of the divorce and that the delay in her own retirement gave her no need to contact DFAS at that time.

3.  Because there is no new spouse with a vested interest in SBP, it is appropriate as a matter of equity to honor the terms of the applicant's divorce decree and grant the requested relief.

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 submitted a deemed election request for former spouse SBP coverage within 1 year of their divorce in September 2003 and that her request was received by DFAS 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)                                         AR20100007450



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ABCMR Record of Proceedings (cont)                                         AR20100007450



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