IN THE CASE OF:
BOARD DATE: 18 November 2010
DOCKET NUMBER: AR20100010940
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 elected former spouse coverage under the Survivor Benefit Plan (SBP) at the time of retirement or that she submitted a deemed election request in a timely manner.
2. The applicant states, in effect, the FSM failed to comply with the court order to elect former spouse SBP coverage and instead elected child only SBP coverage.
3. The applicant provides a copy of the following:
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A supporting statement
* Divorce decree
* Letter from the Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay with Form W-4P (Withholding Certificate for Pension or Annuity Pay) and Direct Deposit Form
CONSIDERATION OF EVIDENCE:
1. The FSMs records show that he enlisted in the Regular Army on 18 June 1985 and he continuously served in an active duty status through a series of extensions and/or reenlistments.
2. The FSMs records also show the applicant and the FSM were married on
6 May 1989.
3. The applicants Judgment of Absolute Divorce, dated 11 December 2002, shows on page 16 that the FSM agreed to opt for former spouse SBP coverage at such time as he was required to make an election and name his wife as his former spouse and annuitant. The FSM was also ordered to pay the applicant child support and 30 percent of his military retirement pay upon retirement. The divorce decree also ordered that the SBP premiums would be paid out of the FSM's military retirement pay.
4. The FSMs DD Form 214 shows he was honorably retired on 31 March 2006 due to sufficient service for retirement and was transferred to the USAR control group (Retired) as a master sergeant, effective 1 April 2006 after completing 20 years, 9 months, and 13 days of active military service.
5. On 10 November 2009, the DFAS, Retired and Annuity Pay Branch, explained to the applicant that the FSM's record shows the FSM's SBP election was currently Child only coverage and T-----r C-----r was listed as the annuitant.
6. 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.
7. 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 the FSM elected SBP child coverage only at the time of his retirement on 31 March 2006. The applicant and the FSM married on
6 May 1989 and divorced on 11 December 2002. The final divorce decree indicates the FSM agreed to provide SBP coverage for the applicant as his former spouse.
2. However, at the time of his retirement the FSM elected SBP coverage only for his children. There is no evidence that the applicant notified DFAS within 1 year of the divorce and requested a deemed election of former spouse coverage and the evidence shows the FSM willfully failed to comply with the court's order.
3. Based upon the SBP award in the final divorce decree and the fact it appears the FSM has not remarried, the FSM's SBP election should be changed to add his former spouse based on her timely submission of a deemed election request to DFAS and the FSM should be required to pay SBP premiums from the effective date specified in the divorce decree, 1 April 2006.
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 to show:
a. that the applicant submitted a timely request for a deemed election of former
spouse SBP coverage which was processed by DFAS in conjunction with the FSM's 1 April 2006 retirement and resulted in former spouse and children coverage; and
b. that the FSM be advised that DFAS will be instructed to collect any additional SBP premium costs that may be due as a result of this action, effective from 1 April 2006, the date of the FSMs retirement from active duty.
_______ _ 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) AR20100010940
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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