IN THE CASE OF:
BOARD DATE: 14 April 2011
DOCKET NUMBER: AR20100020286
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 defers to counsel in this matter.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests, in effect, correction of the records of the applicant's former spouse, an active duty service member (SM), to show she submitted a deemed election request for entitlement to Survivor Benefit Plan (SBP) in a timely manner.
2. Counsel states:
* the applicant's divorce was finalized on 5 June 2009
* the final Decree of Divorce incorporated, but did not merge the Property Settlement Agreement (PSA) of the parties, dated 1 April 2009
* as stated on page 12 of the PSA, the SM is to provide coverage for the applicant through the SBP
* she submitted the PSA and divorce decree to the Defense Finance and Accounting Service (DFAS) Garnishment Operations Branch on 29 March 2010
* she was under the impression this would suffice as her request for a deemed election
* on 10 May 2010, DFAS explained that she must make an election to a different branch of DFAS and provided the correct address
* the applicant had moved after submitting her initial request and did not receive the notice from DFAS until after the 1-year deadline for submission of deemed elections
* the SM's military records should be corrected to show the applicant as the beneficiary as his former spouse under the SBP effective 5 June 2009, the date of their divorce
3. Counsel provides:
* PSA
* final divorce decree
* letter from DFAS Garnishment Operations
* certified mail receipt
CONSIDERATION OF EVIDENCE:
1. The SM's records show he enlisted in the Regular Army on 9 December 1988 and continues to serve in an active duty status through a series of extensions and/or reenlistments. He has an approved retirement date of 31 March 2011.
2. The applicant's divorce decree shows she and the SM were married on 15 April 1992.
3. She submitted a copy of her PSA, dated 1 April 2009, which shows on page 12 that the SM agreed to opt for former spouse SBP coverage at such time as he is required to make an election and to name his then wife as his former spouse and annuitant. The SM was also ordered to pay the applicant child support and a percentage of his military retirement pay upon retirement. The divorce decree also ordered that SBP premiums would be paid out of the SM's military retirement pay.
4. She submitted a copy of a receipt addressed to the Army, Navy, Air Force, and Marine Corps, ATTN: DFA-HGA/CL, Assistant General Counsel for Garnishment Operations, Cleveland, OH, on 29 March 2010.
5. On 10 May 2010, a DFAS-Cleveland official indicated receipt of the application for payment of a portion of the SM's retired/retainer pay by letter to the applicant. The official reminded the applicant that if her divorce decree specified that she was to be designated as a former spouse beneficiary for the SBP, she must make a deemed election for SBP coverage within 1 year of the date of the divorce directly to DFAS.
6. In a telephone conversation with the SM on 12 April 2011 he stated he has not remarried.
7. Public Law 97-252, the Uniformed Services Former Spouses' Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.
8. 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.
9. 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 an 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 records of her former spouse, an SM, should be corrected to show she correctly filed a timely request for a deemed election for SBP former spouse coverage.
2. The evidence of record shows the applicant and the SM were married on 15 April 1992 and divorced on 5 June 2009.
3. In the PSA that was approved on 1 April 2009, which was incorporated but not merged into a decree of divorce, it was agreed that the applicant would be designated as a former spouse beneficiary under SBP at the full amount.
4. In view of the foregoing evidence and the fact that it appears the SM has not remarried, there is sufficient proof to indicate the applicant attempted to submit the necessary paperwork to establish a deemed former spouse SBP election within the prescribed time frame after her divorce. Therefore, in the interest of justice, it would be equitable to correct the SM's records to show the applicant made a request for a deemed election for former spouse coverage in a timely manner.
BOARD VOTE:
___X____ ___X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 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 SM's 5 June 2009 divorce and will be effective the date of the SM's 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) AR20100020286
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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