IN THE CASE OF:	

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110012982 


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, as the former spouse of a former service member (FSM), that she be designated as the "former spouse" beneficiary of the FSM's Survivor Benefit Plan (SBP) annuity.   

2.  The applicant states the FSM's record is in error because of a bureaucratic mistake on the part of the Defense Finance and Accounting Service (DFAS).  She states she made a deemed election request within the required timeframe after her divorce.  She states she mailed her request to the address specified in the letter she received from DFAS.

3.  The applicant provided:

* State of North Carolina, Cumberland County, Equitable Distribution Judgment, dated 27 February 2006
* DFAS letter to the applicant, dated 10 May 2006
* applicant letter to DFAS, dated 14 June 2006
* U.S. Postal Service (USPS) First Class mail receipt, dated 14 June 2006
* applicant letter to DFAS, undated
* Statement of Account from the applicant's attorney, dated 30 March 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's records show he was born on 1 October 1959 and married his former spouse Dxxxxxxx, the applicant, on 19 February 1983. 

3.  The FSM was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1, and entered active duty on 9 September 1983.  He subsequently served in various command and staff positions, within and outside the continental United States, and attained the rank/grade of lieutenant colonel/O-5.  

4.  On 28 February 2003, he was honorably retired after over 24 years of faithful service.  His DD Form 2656 (Data for Payment of Retired Personnel) is not available, but he apparently enrolled in the SBP for spouse coverage.

5.  On 25 July 2005, the applicant and the FSM were divorced; however, their divorce decree is not available for review in this case.  His current marital status is unknown.

6.  On 27 February 2006, the applicant petitioned the General Court of Justice, District Court Division, Cumberland County, North Carolina, for an order clarifying the equitable distribution of the marital assets and liabilities between the applicant and the FSM.  The Court concluded that the FSM had, in effect, an SBP with the applicant as the beneficiary.  The Court ordered the FSM to maintain the SBP as it existed, to pay one-half of its cost (the applicant was required to pay the other half of its cost), and to furnish the applicant all relevant data applicable to the Plan.  The Equitable Distribution Judgment does not specifically order the FSM to change his SBP election from "spouse" to "former spouse"; instead, it orders the FSM to maintain his election "as it now exists." 

7.  On 10 May 2006, by letter responding to the applicant, a DFAS official acknowledged receipt of her application for payment of a portion of the FSM's retired pay under the Uniformed Services Former Spouses' Protection Act (USFSPA).  The letter instructed her on the procedures for requesting a deemed SBP election.  On 14 June 2006, by letter to DFAS, the applicant requested a deemed SBP election as the FSM's former spouse.  DFAS's response to her request is not available for review in this case.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  Elections are made by category, not by name (emphasis added).

9.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP coverage for former spouses of retiring members.

10.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members, including Reservists.

11.  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.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit (emphasis added).  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.

13.  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 contends the records of her former spouse, a retired FSM, should be corrected to show he changed his SBP annuity beneficiary election from "spouse" to "former spouse" within 1 year of their divorce.

2.  The evidence of record shows that the FSM and the applicant were married on 19 February 1983 and were divorced on 25 July 2005.  The evidence of record is unclear as to whether or not the FSM elected SBP coverage for his spouse; however, based on the language contained within their Equitable Distribution Judgment, it is reasonable to conclude he did.  
3.  The Equitable Distribution Judgment did not specifically order the FSM to change his SBP annuity beneficiary election from "spouse" to "former spouse;" instead, it merely stipulated that he maintain his election as it existed at the time. Since it is presumed his existing election was for his spouse (made by category, not by name), his former spouse had no entitlement, given the Judgment language, to deem a "former spouse" election.  However, the applicant (as the former spouse) was still required to pay half the cost of the SBP.

4.  The Equitable Distribution Judgment should be clarified to include specific language that orders the FSM to change his SBP annuity beneficiary election to "former spouse."  Absent such clarifying legal language, there is an insufficient basis to grant relief in this case.

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)                                         AR20090013464



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ABCMR Record of Proceedings (cont)                                         AR20110012982



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