IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100025943 


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, the former spouse of a deceased former service member (FSM), requests correction of the FSM's records to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity.

2.  The applicant states she was married to the FSM between 28 March 1969 and 3 May 1989.  Their divorce decree stipulated the FSM would pay the equivalent of 10 percent (%) of his military retired pay by allotment and maintain her as the beneficiary for his retirement under a spousal benefit plan.  After their divorce, the FSM remarried and he was in total violation of the court order with respect to the designation of his new spouse instead of the former spouse as the beneficiary.  Nevertheless, when the FSM died, an official at the Defense Finance and Accounting Service (DFAS) denied payment of the annuity because she, the former spouse, had not deemed the election within 1 year of her divorce and because the benefits were not provided to her in the divorce decree.  She also states:

	a.  with respect to naming her as the beneficiary, the State court order clearly awarded her the SBP in the divorce decree.  The FSM was ordered by the court to maintain her as beneficiary.

	b.  with respect to deeming the election, she was never aware of such action until she received the denial letter from DFAS.  Additionally, she was never made aware of this requirement by the military or advised by her divorce attorney of such requirement.

	c.  for years, she had relied on the authority of the State court and their order for the applicant to maintain her as beneficiary.  It seems unfair that her right conferred by a State court of competent jurisdiction could be stripped from an individual because of their failure to comply with an unknown DFAS regulatory requirement.

	d.  in today's internet age, it would be easier to be proactive to find out the steps to protect someone's rights.  However, when she was divorced in 1989, those resources were not available.  She has spent a lifetime factoring her SBP benefits into her plan for retirement.  It seems unfair that she would be denied this benefit.

3.  The applicant provides:

* her German marriage certificate
* a judgment of divorce
* a letter from DFAS
* the FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows he and the applicant, H-------e, were married on
28 March 1969.  He served in the Regular Army through multiple reenlistments in staff and leadership positions within and outside the continental United States and he attained the rank/grade of sergeant first class (SFC)/E-7.

2.  On 27 April 1989, the FSM and the applicant were divorced.  Their divorce decree stipulated the FSM would pay an amount equivalent to 10% of his military retirement to the applicant by allotment and he would maintain the applicant under the spousal benefit plan.

3.  On 28 April 1989, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in connection with his retirement, wherein he indicated that he was single but he had dependent daughters/children.  This form shows:

	a.  he first marked the box indicating he wanted child only coverage under the SBP but he then struck that election and marked the box indicating he wanted spouse and child coverage based on the full amount.

	b.  he listed the applicant as his dependent.  He also listed the names of his two daughters and directed that any arrears of retired pay or gratuity pay would be evenly divided between his daughters.

	c.  he and a Retirement Services Officer (RSO) authenticated this form by placing their signatures in the appropriate blocks.

4.  On 30 April 1989, he was honorably retired and on 1 May 1989, he was placed on the retired list in his rank/grade of SFC/E-7.

5.  There is no indication that the FSM notified DFAS within 1 year of their divorce or that he changed his SBP election to former spouse coverage.  Additionally, there is no indication his former spouse, the applicant, made a deemed election within 1 year of the divorce.

6.  On 11 December 1995, the FSM married his surviving spouse, C---i.

7.  On 5 January 2010, the FSM died.  His death certificate shows he was married to C---i at the time of his death.

8.  On 14 May 2010, by letter, DFAS notified the applicant that her request for the SBP annuity was denied because she had not deemed the election within 1 year and the benefits were not awarded to her in the divorce decree.

9.  The FSM's pay records at DFAS indicate that an annuity has been established for C---i as of 1 April 2011; however, payments have not started.

10.  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.

11.  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.

12.  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 applicant and the FSM were divorced on 27 April 1989.  Per the terms of their divorce, she was awarded a 10% interest in her husband's current retired pay.  The court also directed that the FSM would maintain her as the beneficiary of said retirement under spousal benefit plan.  One day after their divorce, the FSM, now considered her former husband, completed a DA Form 4240 in which he accurately indicated he was not married and he had two daughters, one of whom remained his dependent.  He directed that any arrears of retired pay or gratuity pay would be evenly divided between his daughters.  

2.  From there, it appears he first marked the box indicating he wanted child only coverage under the SBP but he then struck that election and marked the box indicating he wanted spouse and child coverage.  He listed the applicant as his dependent.  The form was witnessed by an RSO and appears to reflect the applicant's former husband's intent to comply with the terms of their divorce.  His retirement was effective 3 days later.

3.  Despite the obvious facial inconsistencies in the DA Form 4240 in terms of an election of spouse and child by an unmarried Soldier, DFAS officials erroneously (though perhaps understandably given the applicant's recent divorce) processed the form as an election of spouse and child coverage.  However, the form was invalid as to the spousal portion of the election because under the applicable statutes, a Soldier may not elect coverage for a category of beneficiary he does not have at the time of retirement.

4.  The applicant's former husband (the FSM) remarried in December 1995.  However, there is no evidence he made any change to the SBP during an Open Season or that he added his subsequent spouse to the SBP within 1 year of his marriage as would have been required to establish valid spouse coverage.  Therefore, because only the "child-only" portion of the SBP election was valid, SBP spouse coverage never existed and could never vest in the FSM's post-retirement spouse.  There is no one with a superior vested interest in the SBP to defeat the applicant's equitable interest.  

5.  It is therefore appropriate as a matter of equity to correct the FSM's record to show he elected former spouse coverage within 1 year of their divorce.

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 he elected SBP coverage for former spouse in connection with his submission of his retirement application and that his 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)                                         AR20100025943



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ABCMR Record of Proceedings (cont)                                         AR20100025943



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