IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100011848 


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 the retired service member (SM) defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the retired SM's records be corrected to show his former spouse made a timely written request for a deemed election of the SM’s Survivor Benefit Plan (SBP).

2.  Counsel states the former spouse married the retired SM on 16 July 1964.  Prior to and during the marriage, the SM served in the U.S. Army during the period 7 June 1961 through 31 December 1982.  After more than 35 years of marriage, the two filed a judgment of dissolution of marriage on 14 June 2000.  The judgment stated that the effective date of termination of the marriage was 
1 August 2000.  Pursuant to filing, the court issued an order for division of military retired pay [hereinafter "the order") which was filed on 22 January 2001.

3.  Paragraph 11 of the order states in the event the retired SM predeceases the former spouse, the former spouse shall receive survivor benefits from an SBP.  The retired SM was ordered to enroll in SBP and to elect an option which provides benefits to his former spouse to the extent of her community interest of 41 percent.  If the member fails to enroll as ordered, the former spouse shall be a "deemed" former spouse.  

4.  The applicant's attorney forwarded a written request for pension benefits, on 28 February 2001.  Unfortunately her attorney had been ill during the time the written request for pension benefits was produced and a paralegal in the attorney's office mistakenly sent the request to the Office of Personnel Management (OPM) instead of to the Defense Finance and Accounting Service (DFAS).  On 15 June 2001, when the former spouse did not receive her portion of the retirement pay, she contacted her attorney.  The error was discovered and on 30 June 2001, her attorney sent the required documentation to DFAS.  

5.  The applicant received a letter from DFAS, Garnishment Operations on 
28 September 2001, which stated, in pertinent part, “If your divorce decree specifies that you are to be designated as a former spouse beneficiary for SBP, you must make a 'deemed election’ for SBP coverage within one year of the date of your divorce."

6.  Unbeknownst to the applicant, on 31 May 2001, the retired SM directed DFAS to terminate all SBP elections as of 1 August 2000.  She did not discover she was no longer designated as an SBP recipient until her communication with him on 15 October 2008.  She stated she also discovered she was not listed on his retiree account statements and there was no deemed SBP election.  On 
18 November 2008, she sent an e-mail to DFAS seeking advice on how to proceed with getting the SBP election reinstated.  

7.  On 14 December 2008, DFAS instructed her to go through the SBP administrative corrections process to correct the problem.  After multiple attempts to obtain relevant information and documentation from the retired SM, she requested documentation from DFAS under the Freedom of Information Act (FOIA).  On 13 February 2010, the applicant finally received the requested documentation.  This documentation showed the retired SM requested termination of SBP payments on 31 May 2001.

8.  Counsel provides the following:

* Copies of correspondence between DFAS, the SM, applicant, and counsel
* A copy of the Order Re Division of Military Retired Pay, dated 22 January 2001
* Copies of the SM's retiree account statements 
* A copy of the SM's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 1982
* A copy of a Westlaw case involving SBP



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 and the retired SM married on 16 July 1964.  He retired on 
31 December 1982.  His DA Form 4240 (Data for Retired Army Personnel) shows he elected to participate in the SBP for spouse and dependent children coverage at that time.

3.  The applicant and the retired SM divorced on 1 August 2000.  An order for division of retired pay was issued on 22 January 2001, which stated in the event the member predeceases the former spouse; the former spouse shall receive survivor benefits from an SBP.  The SM was ordered to enroll in the SBP and to elect an option which provides benefits to his former spouse to the extent of her community of interest of 41 percent.  If the member fails to enroll as ordered, the former spouse shall be a "deemed" former spouse.  

4.  Available evidence shows she attempted to file for her portion of retired pay on 28 February 2001; however, an error occurred in her attorney's office and the request was mailed to OPM instead of to DFAS.  On 15 June 2001, the request was properly filed with DFAS.

5.  On 28 September 2001, she received a letter from DFAS, Garnishment Operations which stated, in pertinent part, “If your divorce decree specifies that you are to be designated as a former spouse beneficiary for SBP, you must make a ‘deemed election’ for SBP coverage within one year of the date of your divorce.”

6.  Evidence provided by counsel shows on 31 May 2001, the retired SM directed DFAS to terminate all SBP elections as of 1 August 2000.

7.  A copy of the retired SM's marriage license was provided by counsel.  This document shows the retired SM remarried on 1 December 2002.
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.  

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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

10.  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.

11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 one year of the date of the court order or filing involved.

12.  Title 10, U. S. Code, section 1450(f) states, in pertinent part, that a person who, incident to a proceeding of divorce, is required by a court order to elect former spouse coverage or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless: 

	a.  in a case in which the election is required by a court order or where an agreement to make the election has been incorporated in, ratified, or approved by a court order, the person furnishes a copy of a court order which modifies the provisions of all previous court orders relating to such election or modifies the agreement to make such election, so as to permit the person to change the election; or 

	b.  in a case in which a written agreement has not been incorporated in, ratified, or approved by a court order, the person furnishes a statement signed by the former spouse that evidences the former spouse's agreement to a change in the election.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms she and the retired SM were divorced on 
1 August 2000.  The divorce decree provided direction for both parties to comply with the terms of a settlement agreement, which included continued SBP coverage for the retired SM's former spouse.  

2.  It is recognized by "the order," dated 22 January 2001, she was awarded continued SBP coverage.  The order specifically directed the retired SM to timely execute all documents necessary to maintain the applicant’s designation as a former spouse SBP beneficiary.  If he failed to enroll as ordered, the former spouse shall be a "deemed" former spouse.  Unfortunately, it appears the retired SM did not take the action directed by the court, and in fact, directed DFAS to cancel all SBP payments as of 1 August 2000.  

3.  By law, incident to a proceeding of divorce, a member has one year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within one year of a date of a court-order of divorce.  The evidence shows that in September 2001, the DFAS Cleveland office acknowledged receipt of her attorney’s correspondence and advised the applicant to contact the Retired Pay section at DFAS’s London, KY office.  There is no evidence in the available record to show she or her attorney followed up prior to 22 January 2002.  

4.  Because the retired SM remarried and his current wife now has a vested interest in SBP, the applicant's only recourse is to seek relief in a court of appropriate jurisdiction or to obtain a voluntary release of her SBP interest from the retired SM's current spouse. 

5.  Regrettably, in view of the facts of this case there is no basis on which to grant the requested relief. 






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)                                         AR20100011848



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ABCMR Record of Proceedings (cont)                                         AR20100011848



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