IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:   AR20110005773 


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 correction of his military records by reversing the earlier decision by the Army Board for Correction of Military Records (ABCMR) to grant his former spouse's request for a Survivor Benefit Plan (SBP) deemed election.

2.  The applicant states all of the facts were not presented to the ABCMR at the time of the previous decision on 14 August 2008 causing the Board to err in its conclusion and recommendation.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the ABCMR reconsider its previous decision regarding the applicant's participation in SBP and now form an opinion favorable to the applicant by canceling SBP and refunding all of the money captured from his retired pay which was applied to SBP premiums.

2.  Counsel states, essentially, in an 11-page brief:

	a.  In 2009, the applicant was informed without word or warning from the U.S. Army that deductions were to be made from his retired pay to fund SBP benefits for his former spouse.

	b.  The letter from the U.S. Army described the initial amount of money to be taken from his retirement was about $10,000.00.  He had no previous notices and was not asked to make any comment or response.

	c.  The sum of money taken for SBP continues to rise monthly.

	d.  On 27 November 2007, the applicant's former spouse submitted an application to the ABCMR requesting the applicant's military records be corrected to show she was entitled to make a deemed election for SBP benefits.  After an initial denial because of a need for further information, which was received on 18 April 2008, the ABCMR granted the former spouse's request.

	e.  The applicant received a letter from the ABCMR, dated 27 April 2009, concerning the ABCMR's decision to grant the former spouse a deemed election.

	f.  On 10 December 2009, the applicant submitted an application to the ABCMR seeking reconsideration of its decision.  His application was returned without action because it needed additional information.  This letter is sent to supply that information.

3.  Counsel provides copies of:

* Tab A:  28 March 1996 – letter from Department of the Army to former spouse
* Tab B:  27 April 2009 – letter from Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay (includes 2 pages of schedules)
* Tab C:  6 April 1994 – Final Decree of Divorce (13 pages)
* Tab D:  25 July 2008 – applicant's motion for final summary Judgment (6 pages with applicant's affidavit)
* Tab E:  3 September 2008 – former spouse's response to applicant's motion for final summary judgment (6 pages with former spouse's affidavit)
* Tab F:  9 December 1997 – Complete Release and Settlement Agreement executed by former spouse (6 pages)
* Tab G:  1 November 2007 – application to ABCMR from former spouse
* Tab H:  20 March 2008 – letter from ABCMR to former spouse
* Tab I:  18 April 2008 – letter from former spouse to ABCMR
* Tab J:  14 August 2008 – letter from ABCMR to former spouse with memorandum and Record of Proceedings (7 pages)
* Tab K:  10 December 2009 – application from the applicant to ABCMR
* Tab L:  28 July 2010 – letter from ABCMR to the applicant
* Tab M:  18 January 1996 – letter from DFAS to former spouse
* Tab N:  22 October 2008 – Final Judgment on motion for summary judgment filed by applicant on 25 July 2008
* Tab O:  14 March 2008 – Petition for the Enforcement of Property Division with citation attached filed by former spouse (5 pages)
* Tab P:  14 July 2008 – applicant's original answer (2 pages)
* Tab Q:  22 October 2008 – applicant's first amended original answer (10 pages)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080010612 on 13 August 2008.

2.  The applicant retired from the Regular Army on 30 April 1989.  At that time, he elected to participate in SBP for spouse-only coverage at a reduced rate of $1,000.00.

3.  The final Decree of Divorce between the applicant and former spouse, signed by the court on 6 April 1994 [copy located at Tab C], provided:

	a.  The court found the former spouse should be named as beneficiary of the applicant's SBP and that such election to provide SBP benefits should continue and be maintained in full force and effect and should not be altered or withdrawn by the applicant during his lifetime.

	b.  It further decreed that the applicant was to do such other acts as necessary to immediately designate the former spouse as the beneficiary of his SBP.

	c.  It further ordered that the applicant was not to provide, modify, amend, withdraw, or in any other manner alter the election to name the former spouse as beneficiary of his SBP during his lifetime.

4.  The applicant provides a 6-page document titled, "Complete Release and Indemnity Agreement," dated 9 December 1997.  This document appears to have been signed by the applicant and his former spouse [copy located at Tab F].

	a.  The former spouse – for valuable consideration, including payment of $4,500.00 in cash to her and her attorney – released, acquitted, and forever discharged the applicant of and from any and all claims, demands, or causes of action of whatever nature or may hereafter accrue, for or on account of or in any way connected with, the division of property and related orders of the court as ordered in that document entitled, "Final Decree of Divorce" entered by the Court on or about 6 April 1994.

	b.  This release expressly includes, without limitation:

* any and all judgment(s) awarded to the former spouse against the applicant arising out of the Decree of Divorce
* any claims or potential claims by the former spouse concerning, arising from, or connected with any property, real or personal, awarded to the former spouse against the applicant under the Decree of Divorce
* any and all liens, security interests, or the like awarded to the former spouse in real or personal property awarded to the applicant under the said Decree of Divorce
* any right or claims by the former spouse to enforce or seek to enforce any post-judgment orders issued by the court in the said Decree of Divorce
* any right or claim by the former spouse to use any post-judgment remedy to enforce or to attempt to enforce any judgment, lien, security interest, or other right awarded to her against the applicant or his real or personal property in the Decree of Divorce or incident thereto

	c.  This agreement further expressed it was understood that the intent of this release is to be as broad and comprehensive as possible, so that the released parties shall never be liable, directly or indirectly, for any claims, demands, actions, or causes of action of whatever nature or character.

	d.  The document was notarized by a notary in and for the State of Texas on 9 December 1997.

5.  On 13 August 2008, the ABCMR considered an application submitted by the applicant's former spouse [copy located at Tab J] wherein she requested that his military records be corrected to show he requested to change his SBP election from spouse to former spouse in accordance with their divorce decree in a timely manner.

	a.  The former spouse provided as evidence copies of:

* letter from Army Retirement Services indicating denial of her request for a deemed election
* undated letter from the former spouse to Army Retirement Services
* divorce decree
* letter from ABCMR, dated 20 March 2008
* former spouse's [applicant's] Retiree Account Statement showing the applicant paid SBP premiums in 1995 and into 1996
* former spouse's [applicant's] DD Form 214 (Certificate of Release or Discharge from Active Duty)
* former spouse's [applicant's] DA Form 4240 (Data for Payment of Retired Army Personnel) showing election of spouse-only SBP at a reduced amount of $1,000.00

	b.  Based on the available evidence, the ABCMR concluded the applicant had elected to participate in SBP with spouse-only coverage with a reduced base amount.

	c.  The applicant and former spouse divorced in 1994 and their property settlement and separation agreement stated the applicant would elect and designate the former spouse as his SBP beneficiary.

	d.  The former spouse sought to file a deemed election within 6 months of the court's final decision denying the applicant's appeal of the divorce settlement, but was denied due to the expiration of the 1-year anniversary of the divorce.

	e.  In the interest of justice, the ABCMR granted the former spouse's request to correct the applicant's military records to show the former spouse made a timely request for a deemed election and that such request was granted effective 1 May 1994.

6.  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.

7.  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.

8.  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 SBP or was still on active duty and had not yet made an SBP election.

9.  Title 10, U.S. Code, section 1448(b)(2), permits a person to elect to provide an annuity to a former spouse incident to a proceeding of divorce if required by court order to do so.  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.  The applicant contends that his military records should be corrected by reversing the ABCMR's decision to grant his former spouse's request for an SBP deemed election because all of the facts were not presented to the ABCMR at the time of its previous decision.

2.  The available evidence shows the applicant elected to participate in SBP for spouse only coverage at a reduced rate of $1,000.00 when he retired in 1989.  Furthermore, at the time of his divorce in 1994, he was required by the terms of his Decree of Divorce to continue this SBP coverage for his former spouse.

3.  The applicant has provided a document, dated 9 December 1997, that indicates the former spouse agreed to and signed a Complete Release and Indemnity Agreement.  This document clearly states it was understood that the intent of this release is to be as broad and comprehensive as possible.  It provided that the released parties shall never be liable, directly or indirectly, for any claims, demands, actions, or causes of action of whatever nature or character, as stated in the Decree of Divorce or incident thereto.

4.  However, there is no evidence showing the Complete Release and Indemnity Agreement was ever presented to a court of competent jurisdiction for the purpose of reopening the 1994 divorce decree and ratifying or approving this new property division/settlement.  Accordingly, it is not a sufficient basis for reversing the Board's earlier decision concerning SBP entitlement for the former spouse.  The previous Board decision should not be disturbed, absent a clear pronouncement by a court of competent jurisdiction concerning the former spouse's entitlement (or, lack thereof) to former spouse coverage under the SBP.

5.  In view of the above, the applicant's request should be denied.









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 to amend the decision of the ABCMR set forth in Docket Number AR20080010612, dated 13 August 2008



      ___________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)                                         AR20110005773



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ABCMR Record of Proceedings (cont)                                         AR20110005773



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