IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100022988 


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 that the records of her former spouse, a retired former service member (FSM), be corrected to show he submitted a copy of the final divorce decree to the Defense Finance and Accounting Service (DFAS) office and that she made a timely written request for a deemed election of the FSM's Survivor Benefit Plan (SBP) within 1 year from the date of the divorce.

2.  She states she was not aware the divorce decree had to be submitted within 1 year from the date of the divorce and her former spouse did not tell her this was required.  She contends she found out about it when she tried to change her address with the DFAS Cleveland office.

3.  She provided:

* a DA Form 4240 (Data for Payment of Retired Army Personnel)
* a memorandum from DFAS
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a divorce decree 
* a notarized waiver of entitlement to 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 FSM and the applicant married on 23 November 1968.  He initially entered the U.S. Army in the year 1968 and served until his release in 1985.  In 1986 he reentered the Regular Army.

3.  The FSM's military service records contain a DA Form 4240, dated 4 April 1990.  Part II (Survivor Benefit Plan Election) shows he elected to provide an annuity for his spouse and dependent children based on the full amount of retired pay.

4.  The FSM retired from the Army on 31 July 1990, after serving honorably on active duty for a total of 20 years, 10 months, and 27 days.  He has paid SBP premiums since his retirement.

5.  On 18 November 2004, the Richland County Family Court in South Carolina ordered, adjudged, and decreed that the marriage between the applicant and FSM was dissolved.  This document shows:

	a.  "The parties agree that the Plaintiff [applicant], in consideration for sacrifices made during the marriage and pursuant to the Uniformed Services Former Spouses Protection Act (USFSPA), is entitled to remain the beneficiary of the Defendant's [FSM's] military SBP pursuant to Title 10, U.S. Code, section 1447."

	b.  "To establish the Plaintiff [applicant] as the continued beneficiary of Defendant's [FSM's] SBP, Defendant [FSM] agrees to execute a signed election request for "former spouse coverage" and all other associated and required documentation and submit same to the appropriate military service finance center or governmental office within 10 days of the filing of the divorce decree incorporating this Agreement with the Clerk of Family Court for Richland County; and…"

6.  There is no evidence of record to show the FSM took any action to submit the divorce decree and execute a signed election request for "former spouse coverage" as required by the divorce decree.
7.  There is no evidence of record to show the applicant made a deemed election to DFAS for former spouse SBP coverage within 1 year of the divorce decree being issued as required by law.

8.  The FSM and his current spouse have since married and are currently husband and wife.  The date of marriage is not in the available evidence.

9.  The applicant provided a notarized waiver of entitlement to former spouse SBP from Richmond County in the state of Georgia.  The document shows that on 28 April 2010, the FSM, his current spouse, and his former spouse freely and voluntarily agreed as follows:

	a.  the current spouse waives and declines any and all right to entitlement of any survivor benefits arising out of the FSM's SBP and acknowledges that all survivor benefits are legally and equitably the sole and exclusive property of the former spouse;

	b.  in the unlikely event that the FSM should die prior to the former spouse being designated as the beneficiary of the FSM's SBP and/or should the Department of the Army not recognize this waiver as being binding upon it, then the current spouse waives and relinquishes any and all right to retain the FSM's SBP and agrees to pay all benefits received within 5 days of receipt;

	c.  the FSM agrees that if any additional documents are required to be signed by him in order to designate his former spouse as the beneficiary of his SBP, he will immediately sign and return the required documents within 5 days of receipt; and

	d.  the former spouse agrees that she will not file a rule to show cause against the FSM for his failure to comply with the order in the divorce decree, provided he and his current spouse comply with their obligations under this waiver.

10.  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.

11.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

12.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

13.  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.

14.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  If a member fails to make a court-ordered former spouse SBP election, the law permits the former spouse concerned to request that a former-spouse SBP coverage election be deemed to have been made if the request is made within 1 year of the date of a court order of divorce.

2.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The evidence of record shows that in 2004 the court awarded the applicant former spouse SBP beneficiary status in the divorce decree entered into by her and FSM.  

3.  The evidence of record indicates the FSM failed to provide DFAS with a copy of the divorce decree and elect former spouse SBP coverage for the applicant within 1 year of the date of the divorce, and the applicant contends she was unaware that she was required to make a deemed election for former spouse SBP within 1 year of the divorce.

4.  In April 2010, in another court action, the FSM specifically agreed that if any additional documents were required to e signed by him in order to designate the applicant as his SBP beneficiary, he would immediately do so. In addition, the FSM's current spouse consents to this change in SBP coverage.

5.  The evidence of record also shows the FSM has been paying SBP premiums for spouse and children coverage since he retired from active duty.


6.  Therefore, as a matter of equity, it would be appropriate to correct the FSM's record to comply with the divorce decree that directed former spouse SBP coverage for the applicant.

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 by showing the FSM elected former spouse coverage within 1 year of the date of the final divorce decree and that his request was received 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)                                         AR20100022988



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ABCMR Record of Proceedings (cont)                                         AR20100022988



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