IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110015492 


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 she timely deemed his Survivor Benefit Plan (SBP) election within 1 year of their divorce. 

2.  The applicant states:

* the court ordered her former husband to continue to pay for the SBP after their divorce in April 2009
* she received a letter in May 2009 informing her of the action she needed to take to ensure the deemed election
* she thought the one-year rule applied from the date on the letter she received
* after settling her affairs, she contacted the Army Review Boards Agency and she received a letter concerning the deemed election in January 2011
* after a mix up in her award of the retired pay, she sent another letter in March 2011 requesting the deemed election but she received no response
* she was ultimately advised of the 1-year rule and now after securing employment she is faced with the additional pressure of trying to build a retirement plan

3.  The applicant provides:

* Letters from the Defense Finance and Accounting Service (DFAS), dated 10 May 2010 and 6 July 2011
* Letters written to DFAS, dated 10 January and 28 March 2011
* Divorce decree
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 25 July 2011

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the FSM was appointed as a commissioned officer, executed an oath of office, and entered active duty on 19 November 1970.

2.  The FSM and Doxxxn, the applicant, were married on 27 December 1983.

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

4.  In anticipation of his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Personnel) wherein he indicated he was married and had dependent children.  He elected spouse and dependent children SBP coverage based on the full amount.

5.  On 31 January 1998, the FSM was honorably retired and placed on the retired list in his retired rank of LTC on 1 February 1998.  He was credited with completing over 28 years of faithful honorable active service.  

6.  On 4 January 2010, the FSM and applicant entered into a property settlement agreement with respect to the maintenance and support, property division, and other matters concerning their marriage.  Their divorce decree, dated 23 April 2009, which incorporated their settlement agreement, stipulated that:

* The FSM would pay the applicant a monthly sum of $2,200.00 commencing on 1 December 2009
* The applicant was awarded 25% of the FSM's disposable retired pay to be paid directly by DFAS
* The FSM would maintain the applicant's survivor benefits under the SBP 
* The FSM would pay 100% of the cost of the SBP and the applicant would pay 0% of the cost

7.  There is no indication that the applicant notified DFAS within 1 year of their divorce to change the FSM's SBP election to former spouse coverage.  

8.  On 24 May 2010, by letter, DFAS officials notified the applicant that her application for payment of a portion of the FSM's retired pay had been received and that it would be placed in suspense for 30 days to allow the FSM to provide information regarding the status of the court order.  The letter also advised the applicant that if her divorce decree specified that she be designated as a former spouse beneficiary for the SBP, she must make a deemed election for SBP coverage within 1 year of the date of her divorce.

9.  On 10 January 2011, by letter to DFAS, the applicant requested a deemed election of the FSM's SBP coverage.

10.  On 28 March 2011, by letter to DFAS, the applicant again requested a deemed election of the FSM's SBP coverage.

11.  On 6 July 2011, by letter, DFAS officials notified the applicant that there is no provision in the law to make former spouse coverage an automatic benefit.  The only means is for the service member to change the election.  In some instances, the former spouse can deem the election within 1 year of the divorce.  Since her letters were past the one-year period, they were deemed invalid. 

12.  On 19 July 2011, in response to the FSM's request, an Army Review Boards Agency official informed him that he had not exhausted his administrative remedies and that his request to change his SBP election should be addressed to DFAS.

13.  On 25 July 2011, the FSM completed a DD Form 2656-1 requesting his SBP coverage be changed to former spouse based on his divorce.  He submitted the original election form to this Board.

14.  In a phone conversation between the case analyst of record and the applicant, on 3 January 2012, the applicant indicated her former husband has not remarried. 

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.

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

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time of retirement in January 1998, the FSM elected to participate in the SBP for spouse coverage.  Years later, in April 2009, he and his spouse were divorced.  Their divorce decree stipulated the FSM was required to maintain the applicant's survivor benefits under the SBP and the FSM would pay 100% of the cost of the SBP.

2.  The SBP election was not changed from "spouse" coverage to "former spouse" coverage and the applicant did not make a deemed election within 
1 year of the divorce. 

3.  However, at some stage, the applicant applied for a portion of the FSM's retired pay and DFAS officials advised her that if her divorce decree specified that she be designated as a former spouse beneficiary for the SBP, she must make a deemed election for SBP coverage within 1 year of the date of her divorce.  She immediately corresponded with DFAS and requested a deemed election.  Had she received an earlier response from DFAS, her deemed election request would have most likely been made within the required on-year period.

4.  In view of the foregoing evidence, and given that the FSM did not remarry, there is sufficient proof to indicate the applicant submitted the necessary paperwork to establish a deemed former spouse SBP election within the prescribed time frame after her divorce.  Therefore, in the interest of justice, it would be equitable to correct the records to show the applicant made a request for a deemed election for former spouse beneficiary in a timely manner.

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 the applicant made a request for a deemed election for former spouse beneficiary within 1 year of the divorce, 23 April 2009, and that DFAS received and effected the change.



      _______ _   __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)                                         AR20110015492



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110015492



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1