IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110014969 


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 the records of her former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce. 

2.  The applicant states:

* she was unaware of the requirement to deem the election within 1 year of her divorce
* she contacted officials at the Defense Finance and Accounting Service (DFAS) prior to finalizing her divorce and she was told she would qualify for the SBP after her divorce
* her attorney failed to follow her instructions concerning preserving her right to the SBP
* her English language skills were not adequate at the time; she was also under tremendous emotional and physical pressure/stress at the time
* she sought help after her divorce but she could not afford an attorney
* she contacted her Member of Congress; however, he stated that there was no response from military officials

3.  The applicant provides:

* Marriage certificate
* Divorce stipulation and decree
* FSM's Retiree Account Statement
* Former military identification card
* Two letters from the Department of the Army to her Member of Congress
* Letter written to the applicant from her Member of Congress
* Letter from DFAS to her Member of Congress

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.  Having had prior enlisted service, the FSM was appointed as a commissioned officer and executed an oath of office on 12 January 1954.  

3.  The FSM married Inxxxx on 25 October 1965.

4.  The FSM served in a variety of stateside and/or overseas assignments and he attained the rank of lieutenant colonel (LTC).

5.  On 26 December 1972, in anticipation of his upcoming retirement, the FSM completed a DD Form 1883 (SBP - Election Certificate).  He indicated he was married to Inxxxx and they had four dependent children (Paul born 24 June 1959, Peter born 24 June 1969, John born 25 January 1965, and Frances born 
7 September 1968).  He elected spouse and dependent children SBP coverage based on a reduced amount.  His spouse was informed and counseled and she agreed with his election.

6.  On 31 December 1972, the FSM was honorably retired and placed on the retired list in his retired rank of LTC on 1 January 1973.  He was credited with completing over 20 years of faithful honorable active service.  

7.  It is unclear if and when the FSM and Inxxxx were divorced; however, he and Lyxx, the applicant, were married on 19 September 1974.

8.  On 2 October 1990, the FSM and applicant entered into a marriage settlement agreement and filed a stipulation for divorce in the Court of Common Pleas of Washington County, PA.  Their agreement stipulated that:

   a.  The FSM would name Barxxxx (their daughter) as a 50 percent (%) beneficiary of his SBP and the applicant would prepare the necessary documentation and submit the same upon approval of the FSM to accomplish the terms of the stipulation.
   
   b.  In the event Barxxxx could not initially qualify, the FSM agreed to name the applicant as a 50% beneficiary provided the same could be accomplished under the definitions of the SBP and U.S. laws.

   c.  The FSM and the applicant understood if Barxxxx was ineligible or did not qualify as a beneficiary due to her age the benefits could be constituted non-marital property.

9.  On 3 October 1990, the FSM and applicant were divorced and their marriage settlement agreement was incorporated into their divorce degree. 

10.  There is no indication that the FSM notified DFAS within 1 year of their divorce to change his SBP election to former spouse coverage.  Furthermore, there is no indication the applicant deemed the election 

11.  On 21 May 1992, by letter to the applicant's Member of Congress, a military congressional coordinator stated that an inquiry pertaining to the applicant had been initiated and that further information would be submitted as it became available. 

12.  On 11 June 1992, by letter to the applicant's Member of Congress, a military congressional coordinator stated that with the formation of DFAS in January 1991, finance and accounting policy and system support, including military pay, resided with the Department of Defense (DOD) and that a courtesy copy of the applicant's inquiry was forwarded to DFAS.  The applicant was given a contact name and phone number for assistance.

13.  Also on 21 June 1992, the applicant's Member of Congress provided her the most recent correspondence that office had received from DFAS.  

14.  DFAS records show the FSM married Marxxxxx on or around 1 October 1992. 

15.  On 14 June 2011, by letter, DFAS officials informed the applicant, through her member of Congress, that there are two requirements for a deemed election to be valid:

* the divorce must clearly indicate the former spouse was entitled to coverage under the SBP
* the deemed election must have been received within 1 year of the divorce

16.  Although the applicant provided a communication, dated 1992, with the Department of the Army, there is no record of the applicant submitting a deemed election to DFAS within 1 year of her divorce. 

17.  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.

18.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

19.  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.

20.  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.  The evidence of record shows at the time of retirement in 1972 while married to another woman, the FSM elected to participate in the SBP for spouse and children coverage at a reduced rate.  Years later, following a subsequent marriage to the applicant, the FSM and the applicant were divorced.  Their divorce decree stipulated that their daughter would be a 50% beneficiary of his SBP and that the FSM would prepare and submit the necessary documentation to accomplish the terms of the stipulation.

2.  The divorce decree also stipulated that in the event the FSM's daughter could not initially qualify, the FSM agreed to name the applicant as a 50% beneficiary provided the same can be accomplished under the definitions of the SBP and U.S. laws.  The FSM did not change his SBP election from "spouse" coverage to "former spouse" coverage nor did the applicant deem the election within 1 year of the divorce. 

3.  Furthermore, the FSM remarried in or around October 1992.  Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they have been married for at least 1 year. 

4.  Notwithstanding the applicant's sincerity, the ABCMR may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for so doing would deprive his widow of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from his widow renouncing or relinquishing any interest in the SBP annuity.  

5.  However, even if the widow renounces her interest in the SBP, the applicant may not be eligible for the benefit as a former spouse.  The terms of her marriage settlement agreement conditioned her designation as a 50% beneficiary upon the ability to do so under SBP provisions and federal law, and only if their daughter had not initially been an eligible 50% beneficiary.   It is questionable whether SBP provisions allow such designations.

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)                                         AR20110014969



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ABCMR Record of Proceedings (cont)                                         AR20110014969



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