IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110000174 


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, that she be named as her former husband's Survivor Benefit Plan (SBP) beneficiary.

2.  The applicant states her former husband was in violation of their divorce decree wherein it was stated that she was to be named his SBP beneficiary.

3.  She explains that her divorce decree, which was issued by an Italian court, stated "As soon as the judgment of divorce becomes enforceable, [the former husband] shall fulfill all necessary formalities to ensure to [the applicant) survivor's benefits with regards to his military pension."  She received a letter accepting her as her former husband's SBP beneficiary from the Defense Finance and Accounting Service (DFAS) on 12 December 2008.  However, she has now discovered that her former husband's new wife has been accepted as his SBP beneficiary.  The applicant asks that the Board have their divorce decree translated by whomever the Board chooses, at her expense.

4.  The applicant provides a letter from DFAS dated 12 December 2008; DD Form 2656-10 (Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election), DFAS-CL 7220/148 (Retirement Account Statement), her former husband's DD Form 214 (Certificate of Release or Discharge from Active Duty), a transcript of hearing of her divorce decree which was held on 19 March 2008, the original divorce decree, and copies of personal identification.  


CONSIDERATION OF EVIDENCE:

1.  The applicant's former husband was retired for years of service as a command sergeant major on 30 June 2003.  He had elected to participate in the SBP for spouse coverage.

2.  The applicant and her former husband divorced in Italy in an Italian court.  The hearing was on 19 March 2008 and the decree was filed at the Clerk's office on 16 June 2008.

3.  On 21 November 2008, the applicant submitted a deemed election for her former husband's SBP.  On that election she stated she was divorced on 3 November 2008.  DFAS sent her a letter dated 12 December 2008 acknowledging receipt of her deemed election.

4.  On 7 November 2008, the applicant's former husband remarried.

5.  On 20 November 2008, the applicant's former husband sent a letter to DFAS.  In that letter he said that he had recently received a letter stating that he was having his retired pay garnished to provide SBP for his former wife (the applicant).  He contended that the original divorce decree did not mention SBP, that his former wife had translated the decree herself and had a notary sign that it was translated correctly.  In three accompanying/subsequent documents the applicant's former husband said:

	a.  He requested his SBP be suspended until he had been married to his new wife for a year, and then it be restarted with his new wife as beneficiary.

	b.  He had been informed that only a U.S. court can order payments to former spouses, not an Italian Judicial system that has no jurisdiction over U.S. citizens. He added that while not in the divorce decree, he agreed to give his wife the house in Italy and $1,000 a month.  He accused his former wife of filing an illegal document with DFAS in an attempt to get his SBP.

6.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 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 or as part of a proceeding of divorce.
	
7.  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.

8.  Under the laws which govern making an SBP deemed election, the definition of "court" includes any court of competent jurisdiction of a foreign country with which the United States has an agreement requiring the United States to honor any court order of such country (10 U.S.C. Sections 1447(12) and 1408(A)(1)(C)).  In order for a former spouse to deem an election the court order must be from a "court" as that term is defined (10 U.S.C. Sections 1447(13) and 1450(f)(3)).  In this instance there is no agreement between the United States and Italy to honor Italian court orders.  Therefore, the Italian court-ordered       award of benefits is not enforceable under the "deemed election" provisions of  10 U.S.C. section 1450(f)(3)(A).

DISCUSSION AND CONCLUSIONS:

1.  Whether or not the Italian court awarded the applicant SBP does not matter in this case.

2.  In order to make a deemed election, SBP must be awarded by a court as defined under the relevant United States law.  In this case, the Italian court does not meet that definition because no treaty recognizing Italian judgments exists.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20110000174





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ABCMR Record of Proceedings (cont)                                         AR20110000174



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