IN THE CASE OF:	  

		BOARD DATE:  21 February 2012

		DOCKET NUMBER:  AR20110014735 


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:

The applicant's requests, statements, and supporting documents are submitted by counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the records of the applicant’s former spouse, a former service member (FSM), be corrected to show a former spouse Survivor Benefit Plan (SBP) election change was submitted and approved within 1 year of their divorce.  

2.  Counsel states the military never informed the applicant or the FSM that a former spouse SBP election had to be made within 1 year of their divorce.  The applicant does not remember having a session with the military at the time of her husband’s retirement advising her of her rights regarding this matter and does not recall receiving any written instructions.  The applicant further indicates if she received this in writing she may not have understood it because her reading and writing abilities are limited because she failed to graduate from high school.  The applicant’s mental and physical health during the first year after their divorce was not good, she was dealing with diabetes, carpal tunnel in both hands, high blood pressure, and the mental stress arising from the divorce and her physical ailments.  The applicant is in need of the SBP annuity since she is unable to work and needs the income so she is not dependent on others.  


3.  Counsel provides the following documents in support of the application:

* Divorce Decree with associated documents
* Marriage Certificate
* FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM’s Death Certificate
* Applicant's Medical Treatment Records
* Final degree of divorce 

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.  On 1 May 1981, the applicant and FSM were married in Robertson County, Tennessee.  On 31 January 1993, the FSM was honorably retired.  A DA Form 4240 (Data for Payment of Retired Army Personnel) completed by the FSM on 
19 November 1992 during his retirement processing, shows he elected SBP coverage for Spouse and Children at a reduced amount of $378.00.  The applicant, who was the FSM’s spouse at the time, concurred with this election and signed this form on 9 October 1992.  

3.  On 11 August 2005, the applicant and FSM were divorced.  The Decree of Divorce issued by the Chancery Court for Montgomery County, Tennessee, stipulated, in pertinent part, that the applicant would receive 27 percent of the FSM’s net military retirement, and the FSM would continue to carry SBP coverage for the applicant and would execute all documents to provide the applicant with her portion of the retirement benefits.  

4.  On 19 July 2010, the FSM died at the age of 70.  The death certificate shows his status as divorced.  



5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

6.  Title 10, U. S. Code, Section 1448(b) (3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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’s request to correct the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered.  

2.  Although the applicant and FSM did not comply with the requirement to submit a former spouse election and the applicant failed to request a deemed election within 1 year of their divorce there are equity considerations in this case that should be considered given continued SBP protection was court ordered and the FSM was divorced at the time of death. 

3.  The evidence of record confirms the applicant and FSM were divorced on    11 August 2005, after 24 years of marriage.  The divorce decree stipulated the FSM would continue to carry SBP coverage for the applicant and he would execute all documents to provide the applicant her portion of the retirement benefits.  

4.  In view of the foregoing, given there is no current spouse beneficiary, it would be appropriate and serve the interest of equity to correct the record to show a former spouse SBP election was processed and accepted within 1 year of their divorce, and provide the applicant the reduced SBP coverage initially elected by the FSM with which she concurred as his spouse at the time.  All premium costs associated with the election change will be borne by the applicant.

BOARD VOTE:

___X____  ___X ___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a former spouse election was processed and accepted within 1 year of the divorce; and providing the applicant an SBP annuity based on the reduced coverage election initially made by the FSM from the day after the FSM’s death through the present.  Any premium costs associated with this election and the coverage change will be borne by the applicant.



      _______ _  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)                                         AR20110014735



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ABCMR Record of Proceedings (cont)                                         AR20110014735



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