IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100030020 


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, in effect, correction of the FSM's records to show she filed a timely request for a deemed election for former spouse Survivor Benefit Plan (SBP) coverage.

2.  The applicant states, in effect, that all required documentation pertaining to her divorce and SBP election records were mailed via certified mail to the appropriate agency (Defense Finance and Accounting Service (DFAS)-Cleveland (CL)), but the agency failed to appropriately annotate the FSM's record.  She states she received a letter of receipt, confirming receipt of her DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and a "Deemed SBP Election Notice" from an official at DFAS.  

3.  The applicant provides:

* the FSM's DD Form 214 (Certificate or Release or Discharge from Active Duty)
* Judgment and Decree of Divorce from the Superior Court of the State of Alaska, dated 10 January 2006
* Qualifying Military Order from the Superior Court of the State of Alaska, dated 17 March 2006
* letter from her attorney to DFAS-CL, dated 6 June 2006
* DD Form 2293, dated 6 June 2006
* Deemed SBP Election Notice, dated 6 June 2006
* certified mail receipt, dated 6 June 2006
* letter from DFAS-CL, dated 7 July 2006
* documentation concerning her change of address
* former spouse distribution statements for years 2008 and 2009
* DFAS-CL Form 7220 (Retiree Account Statement), dated 2 December 2009
* State of Alaska Certificate of Death, dated 14 April 2010
* letter from DFAS, Retired and Annuity Pay, dated 21 July 2010
* DD Form 2656 (Data for Payment of Retired Personnel), dated               10 November 1998 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 16 July 1957 and initially entered military service on    4 August 1975.  He married Janet, the applicant, on 27 August 1977.  

2.  On 23 February 1982, after prior active service in the U.S. Marine Corps, the FSM enlisted in the Alaska Army National Guard (AKARNG).  He entered active duty on 2 May 1983, served in various leadership and staff positions, and obtained the rank/pay grade of master sergeant/E-8.  

3.  On 10 November 1998, the FSM completed a DD Form 2656, wherein he indicated he was married and had dependent children.  He further elected spouse and dependent children SBP coverage, based on the full amount of his retired pay.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  

4.  On 31 December 1998, after sufficient service on active duty, the FSM was honorably discharged from the AKARNG, transferred to the U.S. Army Reserve Control Group (Retired Reserve), and placed on the retired list effective              1 January 1999.  

5.  On 10 January 2006, the FSM and applicant were granted a Decree of Divorce Absolute by the Superior Court of the State of Alaska.  Their Judgment and Decree of Divorce, with accompanying Qualifying Military Order dated        17 March 2006, stipulated that the applicant, as the former spouse, would remain the FSM's SBP annuity beneficiary.  

6.  There is no indication the FSM notified DFAS of his divorce, and there is no indication he changed his SBP coverage from spouse to former spouse coverage.


7.  On 6 June 2006, the applicant's attorney forwarded copies of the applicant's divorce decree, qualifying military order, DD Form 2293, and Deemed SBP Election Notice to DFAS-CL.  

8.  On 7 July 2006, a DFAS-CL official acknowledged receipt of the application for payment of a portion of the SM's retired/retainer pay; however, the letter does not acknowledge receipt of the Deemed SBP Election Notice.  The official reminded the applicant that if her divorce decree specified she were 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-London, KY

9.  On 14 April 2010, the FSM died.  His certificate of death shows he was divorced at the time of death.  Additionally, there is no indication in his records that he remarried following his divorce from the applicant.

10.  The FSM's DFAS-CL Form 7220 shows he continued to pay SBP premiums, for spouse coverage, through the date of his death.

11.  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.  

12.  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.  

13.  Public Law 98-94, dated 24 September 1983, established former spouse 
SBP coverage for retired members.

14.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

15.  Title 10, U.S. Code, section 1448(b)(3) 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 one 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.

16.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of the FSM should be corrected to show she filed a timely request for a deemed election for former spouse SBP coverage.

2.  The evidence of record shows the applicant and the FSM were married on 
27 August 1977 and divorced on 10 January 2006.  At the time of their divorce, the FSM had an SBP election in effect for spouse and children coverage, based on the full amount of his retired pay.  Their divorce decree stipulated that he would maintain the applicant as the beneficiary of his SBP annuity.  

3.  While there is no evidence the FSM changed his SBP election from spouse to former spouse within 1 year of his divorce, the evidence of record shows despite being granted a divorce on 10 January 2006, and despite the fact that he did not remarry, he continued to pay SBP premiums through the date of his death.

4.  Additionally, there is sufficient evidence to show the applicant requested the SBP coverage be deemed to her as a former spouse.  Accordingly, she should be entitled to the annuity.

5.  There is sufficient proof to indicate the applicant submitted 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 FSM'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 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 the applicant made a request for a deemed election for former spouse SBP coverage within 1 year of her divorce from the FSM, on 10 January 2006, and that DFAS effected the change.



      ____________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)                                         AR20090014111



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ABCMR Record of Proceedings (cont)                                         AR20100030020



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