IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110016218 


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 spouse, a former service member (FSM), be corrected to show she elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with their divorce.

2.  The applicant states:

   a.  she and her attorney were not informed or made aware that she could initiate SBP coverage on her own by way of a "deemed election" within one year of the court order stipulating her entitlement to this coverage; and

   b.  she was designated the SBP beneficiary at the time of the FSM's retirement and he has done everything within his control to prevent her from receiving this entitlement.

3.  The applicant provides:

* Final Judgment of Divorce
* Marital Settlement Agreement
* Consent Order
* Defendant's Certification
* Law Office of Steven P Monaghan Letter dated 25 January 2010
* Six Letters from her Counsel 
* Defendant's Notice of Motion to Enforce Litigants Rights and for Additional Relief

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 31 October 1978.  He and the applicant were married on 6 March 1987.

2.  On 1 September 1999, the FSM and the applicant completed a 
DD Form 2656 (Data for Payment of Retired Personnel).  It shows the FSM elected to participate in the SBP for spouse and children coverage.

3.  On 30 November 1999, the applicant was honorably retired from active duty.  The DD Form 214 issued at that time shows he completed 21 years and 1 month of creditable active duty service.

4.  On 23 October 2009, in the State of New Jersey, the applicant, FSM, and their attorneys executed a Marital Settlement Agreement.

   a.  Page 9, paragraph 26 (Husbands Military Retirement Pay) provided for the FSM's retired pay and stated the Wife shall be entitled to fifty percent (50%) of the marital coverture which shall involve a fraction, the numerator being the total number of months that the Husband was in the active service during the marriage through the date of the complaint, and the denominator being the total number of months the Husband's active service in total.
   
   b.  Page 12, paragraph 32 (Other Retirement and Pension Interests) of this document provides that the Wife (the applicant) shall be entitled to the survivor's option benefit that provides for the continuation of the payment of benefits to the Wife (provided she survives the Husband's death) in an amount equal to the Wife's interest of the Husband's pension entitlement at the time of his death provided the expenses are borne solely by the Wife with no reduction of benefits to the Husband.

	c.  Page 13, paragraph 35 (Other Retirement and Pension Interests) of this document provides that the Husband (the FSM) shall be entitled to the survivor's option benefit that provides for the continuation of the payment of benefits to the Husband (provided he survives the Wife's' death) in an amount equal to the Husband's interest of the Wife's pension entitlement at the time of his death provided the expenses are borne solely by the Husband with reduction of benefits to the Wife.

5.  The Marital Settlement Agreement does not have a clear reference to the FSM's SBP.

6.  On 28 October 2009, the FSM completed a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate).  It shows he elected to suspend SBP spouse only coverage based on his divorce.

7.  On 9 November 2009, the Superior Court of New Jersey, Monmouth County, issued the applicant and FSM's Final Judgment of Divorce.

8.  During the processing of this case, a staff member of the Board contacted a Defense Finance and Accounting Service (DFAS) official to ascertain the FSM's current SBP participation status and if he remarried.  The DFAS official provided the FSM's DFAS record shows:

* the FSM's initial SBP election for spouse coverage was suspended based on his divorce
* there was no evidence in the FSM's record to show he remarried
* the FSM's former spouse (the applicant) began receiving a portion of his retired pay in August 2011

9.  The applicant provides five letters dated from 8 February through 24 August 2010, addressed to the FSM from her attorney requesting him to comply with the terms of the marital settlement agreement.

10.  On 15 October 2010, the applicant through her attorney, initiated a "Defendant's Certification" to the Superior Court of New Jersey, in support of a "Motion to Enforce Litigants Rights and for Additional Relief."  The FSM was forwarded a copy of this document on 20 October 2010.

11.  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.

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

13.  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.

14.  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.  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.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  By law, divorce courts may 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.  Incident to a proceeding of divorce, the former spouse can request a former spouse SBP coverage election be deemed to have been made within 1 year of the date of a court order of divorce.

2.  The evidence of record confirms the FSM and the applicant were divorced on 9 November 2009.  SBP coverage was not clearly included in the original divorce decree and, therefore, no deemed election was made within 1 year of the divorce.  Upon the FSM's and applicant's divorce, the FSM had the option to change his SBP election of coverage from "spouse" to "former spouse" to show his intent to maintain the applicant the beneficiary of his SBP.  However, he suspended spouse only SBP coverage and made no additional elections.  Therefore, there is an insufficient evidentiary basis to support granting the applicant the requested relief in this case.

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)                                         AR20110016218





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ABCMR Record of Proceedings (cont)                                         AR20110016218



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