IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100028423 


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 his record to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage or reinstatement of his former spouse's SBP coverage.

2.  The applicant states the Defense Finance and Accounting Service (DFAS):

   a.  failed to respond to his 21 March 2001 request for information regarding SBP coverage for his ex-spouse;
   
   b.  continued to withhold monthly SBP premiums 9 years after his divorce;
   
   c.  caused him to believe the information he submitted in his 21 March 2001 letter was satisfactory to maintain SBP coverage for his ex-spouse because SBP premiums were continually deducted from his retired pay 9 years after his divorce.

3.  The applicant provides:

* Self-authored statement
* Letter to DFAS, dated 1 March 2001
* DFAS Letter 31 August 2010
* DFAS Letter 1 November 2010
* Judgement of Dissolution of Marriage

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that after having prior enlisted service, he was commissioned a second lieutenant (2LT) in the U.S. Army Reserve and entered active duty on 18 June 1959.  He served in area of concentration 1193 (Field Artillery).

2.  The applicant and his former spouse were married on 2 May 1959.  The FSM retired on 30 June 1987, after completing 28 years and 13 days of creditable active duty service.  At that time, he elected to participate in the SBP for spouse only coverage, reduced base amount.

3.  On 28 December 2000, the applicant and his former spouse were divorced.  The marital settlement agreement was approved and incorporated in the final judgment.  Section 2.-5, page 7 of the marital settlement agreement stated, in pertinent part, "Wife will continue to be covered under Husband's Military Survivor's Benefit Program and Husband's Department of the Army Retirement Plan."

4.  On 1 November 2010, DFAS notified the applicant of the following:

   a.  there was a one-year window from the date of his 28 December 2000 divorce during which he could have elected former spouse coverage under the SBP or the former spouse may have deemed the election based on the court order awarding SBP coverage;
   
   b.  since the one-year period passed on 28 December 2001, his request to elect former spouse SBP coverage, dated 16 Aril 2010, could not be honored;
   
   c.  his 1 March 2001 correspondence did not indicate any request related to his SBP or an election for former spouse coverage;
   
   d.  former spouse coverage is not an automatic benefit; and
   
   e.  the only means by which the divorced spouse may receive a survivor annuity is if former spouse coverage is elected; a court order by itself cannot institute automatic coverage.

5.  During the processing of this case, a staff member of the Board contacted DFAS to determine the applicant's current SBP enrollment status.  On 7 June 2011, a DFAS official confirmed:

* the applicant's enrollment in the SBP was terminated in the year 2010 with an effective date of 28 December 2010, the date of the divorce (however, the actual date termination was accomplished was not provided)
* a refund of prior premiums paid dating back the last 6 years through 10 May 2004 was refunded to the applicant in the amount of $10,097.00 on 30 June 2010

6.  On 29 June 2011, the applicant indicated his understanding and willingness to repay DFAS the former SBP premiums refunded him in the actual amount of $7,226.15, which was the amount he received of $10,097.00 after all deductions were made.

7.  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.

8.  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.  

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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 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.  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.


DISCUSSION AND CONCLUSIONS:

1.  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 the date of a court order of divorce.

2.  The evidence of record confirms the applicant and his former spouse were divorced on 28 December 2000.  The divorce decree directed that both parties comply with the terms of a property settlement agreement they had entered into, which included continued SBP coverage for the applicant as former spouse.

3.  The applicant provides sufficient evidence to show he immediately informed the DFAS of his divorce and inquired what portion of the decree he needed to submit to DFAS in hopes that the required actions stipulated in marital settlement agreement would be accomplished.  Although the available evidence does not show he specifically requested SBP former spouse coverage upon his divorce, he continuously paid SBP premiums since the divorce on 28 December 2000 through the year 2010, for more than 9 years, which corroborates his claim he believed the former spouse SBP election had been made.  It also appears he has not remarried.  If he had he would not have received a full refund of premiums.

4.  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 applicant was married to the former spouse for more than 41 years which included his entire military career of over 28 years.  The court awarded the former spouse SBP beneficiary status in the marital settlement agreement portion of the divorce decree.  The applicant made her his SBP beneficiary at the time of his retirement from active duty.  Therefore, in the interest of justice and equity, it would be appropriate to correct the record to comply with the divorce decree providing SBP coverage for the applicant's former spouse.

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:

	a.  showing the applicant changed his SBP spouse coverage to former spouse SBP coverage on 29 December 2000, the day after their divorce; and 

   b.  advising the applicant DFAS will be instructed to collect the previous refund of SBP premiums he received and any additional SBP premium costs due.




      _______ _   _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)                                         AR20100028423





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ABCMR Record of Proceedings (cont)                                         AR20100028423



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