IN THE CASE OF:	   

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110016751 


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, in effect, that the records of her former spouse, a retired former service member (FSM), be corrected to show she made a timely written request for a deemed election of the FSM’s Survivor Benefit Plan (SBP).

2.  She states, in June 2011, she received a letter from the Defense Finance and Accounting Service (DFAS) office informing her she only had one year from the date of her divorce to make a deemed election for the FSM's SBP.  She contends she was totally unaware of the time parameter and was never informed of the time constraints prior to receiving the letter from DFAS.  

3.  She adds that it was her understanding that she was to apply for SBP after her former spouse's retirement from the Army, which occurred in May 2011.  Furthermore, the divorce decree outlined the benefits she was to receive from her former spouse and SBP was just one of the entitlements.  

4.  She is asking that the court order granting her former spouse SBP coverage be honored as a legal binding document as ordered on page 33 of the divorce decree.   

5.  The applicant provides:

* A copy of the marriage license
* The divorce decree
* A DD Form 2656-10 (SBP/Reserve Component (RC) – SBP Request for Deemed Election)
CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 7 June 1989.

2.  On 18 April 1990, he enlisted in the Regular Army and continued to serve through a series of reenlistments.

3.  The applicant and the FSM divorced on 8 March 2007.  

4.  The divorce decree awarded the applicant 50% of the FSM's disposable retired pay upon his retirement from the Army.  She was also awarded former spouse SBP in accordance with the Uniformed Services Former Spouses Protection Act (USFSPA).  

5.  The FSM was specifically ordered to designate the applicant as a former spouse beneficiary of his SBP.  Her designation as former spouse was not to be altered or withdrawn at any time during her lifetime. 

6.  The court directed the applicant to apply to be deemed a former spouse beneficiary of the FSM's SBP by contacting the DFAS Legal Department, notifying their office of the court's deemed election pursuant to Title 10, U.S. Code, Section 1447.  She was also directed to provide DFAS with a certified copy of the court order by certified mail, addressed to the U.S. Military Annuitant Pay, P.O. Box 7131, London, KY 40742-7131.  

7.  The FSM's military record contains a DD Form 2656 (Data for Payment of Retired Personnel), dated 10 March 2011.  Item 26 (Beneficiary Category (ies)) of this form shows he indicated he did not have a spouse and elected full coverage for children only under Option C (I Elect Coverage for Child(ren) only).  The dates of birth of the children are listed as 22 November 1988 and 7 January 1998.

8.  The FSM retired on 31 May 2011, in the grade of sergeant/E-5 after completing 20 years, 11 months, and 1 day of net active service. 

9.  The applicant provided a copy of a DD Form 2656-10 she completed on 
1 August 2011.  

10.  Instructions for electing former spouse and children coverage on the DD Form 2656 show, if a service member desires coverage for a former spouse and dependent child(ren) of that marriage, he/she will indicate so by placing an "X" in Option "F" of item 26.  He/she is also to provide a certified photocopy of the final decree that includes separation agreement or property settlement which discusses SBP for former spouse coverage.  The DD Form 2656-1(SBP Election Statement for Former Spouse Coverage) must also be completed and accompany the completed DD Form 2656 to DFAS.

11.  The Privacy Act Statement section of the DD Form 2656-1 shows the routine uses for completing the form are consistent with the requirements of Title 
10, U.S. Code, Sections 1450(f)(3) and 1448(a) regarding SBP coverage for a former spouse if required by a court order.  Section III (Certifications – Retired and Retiring Members and Former Spouses) requires the signatures of the service member, former spouse, and witnesses for both be completed prior to forwarding this form to DFAS. 

12.  Title 10, U.S. Code, section 1447(11)(a) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  Marriage at any age will terminate a child's eligibility.  If former spouse and children coverage is elected, only those eligible children from the marriage between the member and the former spouse are covered.

13.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.

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.  

15.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to former spouse coverage under the SBP was carefully considered.  However, while her argument has logic and appears to be supported by the divorce decree she provides, it is not the overriding principle in this case.  

2.  Contrary to the applicant’s assertion, the divorce decree specifically ordered her to provide DFAS a certified copy of the divorce decree and to apply to be deemed a former spouse beneficiary of the FSM's SBP.  

3.  By law, incident to a proceeding of divorce, a member must comply with a court order directing an annuity to a former spouse by making such an election at retirement.  If the member fails to make such an election, the law also permits the former spouse concerned to request that a former spouse SBP coverage election be deemed to have been made, if the request is made within one year of the date of a court order of divorce.

4.  The evidence of record indicates that the FSM failed to elect SBP coverage for his former spouse at the time of his retirement on the DD Form 2656.  Despite the court-ordered directive, the FSM elected children only coverage when he submitted his DD Form 2656 in conjunction with his request for retirement in March 2011.  As such, he has been paying SBP premiums for children only since he retired from active duty.  

5.  The evidence of record also shows that the applicant failed to make a request for a deemed election within one year of the divorce.  She states she was under the impression that she wasn't required to make a deemed election until the FSM retired from the Army.  She also maintains that she was not aware of the one-year time constraint subsequent to the date of the divorce to make this election.  

6.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The FSM was married to the applicant for over 17 years of his nearly 
21-year military career.  

7.  Title 10, U.S. Code, section 1447(11)(a) provides for the payment of SBP annuities to dependent children as long as they are unmarried, under age 18, or under age 22 if still in school.  It also provides coverage for a child who becomes disabled and is incapable of self-support.  

8.  While the evidence shows that the court awarded the applicant the former spouse SBP beneficiary status in the divorce decree under Public Law 97-252, USFSPA, it would also be appropriate to protect the interest of the child born on 7 January 1998.  Therefore, his record should be corrected to show:

* The FSM elected former spouse and dependent children SBP coverage on the DD Form 2656
* The FSM and the applicant completed a DD Form 2656-1 in accordance with the election made on the DD Form 2656
* The applicant applied for a deemed election for former spouse coverage within one year of the date of divorce 

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:

	a.  showing the FSM elected former spouse and dependent children SBP coverage on the DD Form 2656;

	b.  showing the FSM and the applicant completed a DD Form 2656-1 in accordance with former spouse and dependent children SBP coverage; and

	


c.  showing the applicant made a deemed election for former spouse coverage within 1 year of the date of the divorce. 




      _______ _   _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)                                         AR20110016751





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ABCMR Record of Proceedings (cont)                                         AR20110016751



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