IN THE CASE OF:	  

		BOARD DATE:	  12 February 2012

		DOCKET NUMBER:  AR20110013696 


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 that the records of her former spouse be corrected to show that she is entitled to Survivor Benefit Plan (SBP) benefits as a former spouse.

2.  The applicant states that her former spouse, who is now a retiree, was required to designate her as the beneficiary for his SBP annuity in their divorce decree.  However, he did not do so and she is now being informed that she had only 1 year to make the designation and it is now too late.  She continues by stating that she thought it was her former spouse’s responsibility to do so.  

3.  The applicant provides a copy of a letter from the Defense Finance and Accounting Service (DFAS), a copy of a voluntary separation and property settlement agreement, a one-page statement explaining her application, a copy of her marriage license, and a copy of judgment of absolute divorce. 

CONSIDERATION OF EVIDENCE:

1.  The applicant married her former spouse on 13 July 1985 and her former spouse was commissioned as a second lieutenant and he served continuously in the Regular Army.  He was promoted to the rank of lieutenant colonel on 1 December 2004. 

2.  The applicant and her former spouse were divorced on 10 November 2009 and the settlement agreement stipulated that her former spouse would elect maximum SBP coverage for the applicant. 
3.  From the records available to the Board the applicant’s former spouse apparently remarried sometime between the date of his divorce  and 14 September 2010 and retired on 1 March 2011 after serving 22 years, 11 months and 6 days of active service.  At the time of his retirement he elected full spouse coverage under the SBP and designated his current spouse as the beneficiary.   

4.  The letter from the DFAS provided by the applicant informs her that the former spouse was not eligible to make an election under the SBP until his retirement; however, the applicant and her attorney were not limited to making such a deemed election within 1 year after the date the decree was signed.  However, there was no evidence that either had done so.

5.  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.  Election of beneficiaries is made by category only, not by name.

6.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  

7.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired 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 the SBP or was still on active duty and had not yet made an SBP election.

9.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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 as part of a proceeding of divorce.

10.  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.  While the intent of the USFSPA is clearly to prevent injustices against former spouses of the nature imposed on the applicant in this case, the applicant was the only person eligible to make the election directed by the civil court to make timely application of retired pay and SBP participation.  The applicant’s former spouse was not eligible to make such an election until such time as he retired.

2.  By law, incident to a proceeding of divorce, a member has 1 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 1 year of a date of a court order of divorce.

3.  Although it appears that the retired pay portion of the court order was handled in a timely manner, there is no evidence to show that either the applicant or the FSM made a timely application to change the SBP election to "former spouse" within the 1-year time limit, and the former spouse has since remarried.

4.  Accordingly, the former spouse's current spouse is the lawful beneficiary of  the former spouse’s SBP because the former spouse made his election for full spouse coverage when he retired and they have been married for more than 1 year.  To grant the applicant's request at this date would constitute an unconstitutional taking from his current spouse without due process.

5.  Therefore, in the absence of evidence to show that either the FSM or the applicant applied to DFAS within 1 year of their divorce to make an SBP election to former spouse and that their request was not handled in a proper manner, or  in the absence of a valid court order divesting the current spouse of her interest in the SBP from a court action involving the FSM and his current spouse as proper parties, there appears to be no basis to grant 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)                                         AR20110013696





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013696



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1