BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110013851 


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 reinstatement of her beneficiary status under the Survivor Benefit Plan (SBP) that was granted to her by her former spouse, a former service member (FSM), in their divorce decree.

2.  The applicant states:

* she and the FSM were divorced in 2002 and their divorce decree stipulated that she was to be the continued beneficiary
* she was not informed of her former-spouse benefits when they divorced
* she did not know she could deem the election
* her former husband withheld information from her regarding her benefits during and after their divorce
* she communicated with officials at the Defense Finance and Accounting Service (DFAS), but she was told she did not deem the election within 1 year
* the FSM has since remarried

3.  The applicant provides:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* decree of dissolution of marriage
* separation agreement
* FSM's January 2002 Retiree Account Statement
* letter from the FSM to DFAS
* letter from DFAS to the FSM
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* letter from DFAS to the applicant
* exchange of letters between her attorney and the FSM's attorney
* certificate of life insurance
* marriage license/certificate

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 Army Board for Correction of Military Records (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 enlisted in the Regular Army on 17 June 1974 and he held military occupational specialty 88M (Motor Transport Operator).  He and the applicant were married on 28 August 1974.

3.  The FSM served through multiple reenlistments in a variety of stateside and/or overseas assignments.  He attained the rank/grade of sergeant first class/E-7.  He retired on 30 June 1994 and he was placed on the Retired List effective 1 July 1994.

4.  In connection with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated he was married to the applicant.  He elected spouse-only SBP coverage based on the full amount.

5.  On 8 August 2000, he and the applicant entered into a separation agreement. Item 11 (Pensions/Retirement Accounts) of their agreement contains a hand-written entry "SBP will remain in [Applicant] beneficiary."

6.  The FSM's January 2002 Retiree Account Statement shows spouse SBP coverage and the corresponding SBP premiums.  The applicant's date of birth is listed on this statement.

7.  On 9 August 2002, the FSM and applicant jointly petitioned for dissolution of marriage in the Combined Court, Delta County, Colorado.  Item 16 of this petition contains a hand-written entry "[Applicant] will receive $500.00 a month, life insurance, and military SBP will remain to [Applicant] as beneficiary."

8.  On 12 November 2002, the District Court Magistrate, Delta County, Colorado, ordered their marriage dissolved and a decree of dissolution entered.

9.  There is no indication the applicant notified DFAS of her divorce or sought a deemed election.  Additionally, there is no evidence the FSM changed his SBP coverage from "spouse" to "former spouse" coverage.

10.  The FSM's pay records show he remarried on 9 July 2004.

11.  The FSM's April 2009 Retiree Account Statement shows he continued spouse SBP coverage and paid the corresponding SBP premiums.  The applicant's date of birth is listed on this statement.

12.  On 13 January 2010, the FSM requested a change to former spouse SBP election by letter to DFAS.  However, DFAS's response, dated 19 May 2010, advised him that he failed to submit a final divorce decree with a judge's signature and he did not request the change within 1 year of his divorce as required by law.

13.  It appears the FSM and the applicant completed a DD Form 2656-1 in June 2010 wherein he requested a change to the SBP election for former spouse.  However, in its response, dated 13 August 2010, DFAS officials advised the applicant that a deemed election must be received within 1 year of the divorce.

14.  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.  Elections are made by category, not by name.

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

16.  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.

17.  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 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.

18.  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 evidence of record shows the FSM elected SBP spouse coverage upon retirement.  He and the applicant entered into a separation agreement on 8 August 2000.  The separation agreement was incorporated into their dissolution of marriage in August and November 2002.

2.  Their separation agreement stipulated the applicant would be the designated beneficiary of his SBP.  However, there is no indication the FSM submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.  The applicant also failed to request a deemed election for former spouse coverage within 1 year of the divorce.

3.  Furthermore, the FSM remarried at a later date (July 2004).  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of death, any SBP benefits would be paid to the beneficiary in effect at the time of death (his current spouse, not his former spouse) if they had been married for at least 1 year.

4.  The ABCMR may not correct the FSM's records to effectively change his election to former spouse, for so doing would deprive his current spouse of a property interest without due process of law.  The ABCMR would accept a request for reconsideration if accompanied by a signed and notarized declaration from his current spouse renouncing any interest in the SBP annuity or a court order divesting her of her interest.

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 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)                                         AR20110013851



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ABCMR Record of Proceedings (cont)                                         AR20110013851



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