BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018472 


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, the former spouse of a deceased former service member (FSM), requests correction of the FSM's record to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states the FSM's records are in error because the FSM failed to adequately communicate his "deemed election" to the satisfaction of the Defense Finance and Accounting Service (DFAS).  As a result, this allowed DFAS to misinterpret his intention and assign the SBP benefit to his subsequent spouse, contrary to the FSM's wishes and the court-ordered divorce decree.

	a.  She states the FSM entered the West Virginia Army National Guard (WVARNG) in 1960.  They were married on 1 September 1962; he elected full spouse only coverage on 20 May 1980; and he retired from the WVARNG in 1994.  At the time, they were married and she had been married to the FSM through 32 of his 34 years of military service.

	b.  On 4 June 1998, a Qualified Domestic Relations Order (QDRO) was entered that stipulated the applicant be named as the beneficiary of the FSM's SBP.  

	 	(1)  The QDRO also stipulated that she would remain as the SBP beneficiary and the FSM was prohibited from making any change in the SBP that would result in her being removed as the designated beneficiary.

	 	(2)  Her lawyer forwarded a copy of the order to DFAS on 11 June 1998.  She asserts that this action served to satisfy the "deemed election" requirement.

	c.  The FSM continued to have SBP premiums deducted from his retired pay; however, he neglected to notify DFAS to change his SBP category from spouse to former spouse.

	d.  The FSM remarried in June 2000 and passed away on 16 August 2010.

	e.  At that time, the applicant made numerous inquiries concerning her entitlement to the SBP annuity through military channels.  On 29 September 2010, she received a telephone call from a Retirement Services Officer (RSO) informing her that her claim had been denied because she did not submit a "deemed election" within 1-year after her divorce.

	f.  She continued to pursue her claim to the SBP annuity and solicited the support of her Congresswoman.  The Deputy Director of Operations, DFAS, stated "Since SBP former spouse coverage was not elected by either party within 1-year from the date of their QDRO (the applicant) is not entitled to a monthly SBP annuity."  She adds that her requests for copies of records and detailed information concerning the FSM's SBP have been denied by DFAS.

	g.  She states despite the fact that the FSM did not take the required action to change his SBP election from spouse to former spouse coverage it is clear it was his intention to comply with the QDRO.

	h.  She adds that Army Board for Correction of Military Records (ABCMR), Proceedings, Docket Number AR2003083486, dated 27 March 2003, offers a comparable case precedent.  In that case neither the FSM nor former spouse took the required actions to change the SBP coverage to former spouse coverage within the 1-year time limit established by law.  However, the ABCMR corrected the record to show the FSM requested to change his SBP coverage to former spouse (and children) coverage.

	i.  She also refers to a 2005 court case decided by the U.S. Court of Federal Claims, Shirley J. Holt v. The U.S. of America, Case Number 00-571C, which centered on the procedural confusions that existed 1997 and 1998 concerning the "deemed election."

   	(1)  In that case the Court noted in the procedural history that "To our surprise, there was also very little authority concerning the particulars for the former spouse's 'written request' for 'deemed election' beneficiary status.

   	(2)  In its discussion it added "We must decide whether the Government's insistence on formality in its demand for a distinct and separable 'written request' is justified in the absence of any established manner or procedures prescribed by the Secretary and in light of other practices which have been deemed sufficient."

   	(3)  The Court recognized it was only in the year 2000 that the Secretary actually prescribed the manner in which a written request is received.  It acknowledged that the new (2000) provisions could not be applied in the plaintiff's situation since it post-dated her circumstances.

		(4)  The applicant asserts that her circumstances are similar to the plaintiff's situation in the referenced court case.

3.  The applicant provides copies of:

* the FSM's SBP election
* their certificate of marriage, property settlement agreement, QDRO, and divorce decree
* a letter written to DFAS from her attorney
* the FSM's death certificate
* a list of military contacts
* correspondence written between the applicant, her Congresswoman, and DFAS
* ABCMR Docket Number AR 2003083486, dated 27 March 2003

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's records to show he changed his SBP election from spouse to former spouse coverage.

2.  Counsel states, in effect, he defers to the applicant.

3.  Counsel provides no additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Army National Guard of the United States on
15 December 1959.  He was born in November 1942.

2.  A Certificate of Marriage shows the applicant and the FSM were married on
1 September 1962.

3.  The FSM was appointed as a Reserve commissioned officer on 27 June 1973.  

4.  A DD Form 1883 (SBP Election Certificate) shows the FSM indicated he was married to Exxx J. (the applicant) on 1 September 1962 and he had one dependent child.  He elected spouse only coverage based on the full amount of retired pay with Reserve Component (RC) SBP Option C (Immediate Coverage).  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows the FSM placed an "X" in the "Yes" block.  The DD Form 1883 also shows the FSM and a witness placed their signatures on the document on 7 August 1979.

5.  On 24 April 1980, the Adjutant General, WVARNG, notified the FSM that his eligibility for retired pay had been established upon attaining age 60.

6.  He was promoted to lieutenant colonel (LTC)/pay grade O-5 on 1 July 1987.

7.  State of West Virginia, Adjutant General's Department, Charleston, West Virginia, Orders 124-602, dated 11 July 1994, assigned the FSM to the U.S. Army Reserve Control Group (Retired Reserve) effective 30 July 1994.

8.  A DD Form 1300 (Report of Casualty) shows the FSM died on 16 August 2010.

9.  In support of her application, the applicant provides the following pertinent documents:

	a.  A DD Form 1883 that shows the FSM indicated he was married to Exxx J. (the applicant), on 1 September 1962, and he had one dependent child.  He elected spouse only coverage based on the full amount of retired pay with RCSBP Option C (Immediate Coverage).  Section V, item 18 (Is this the only election of coverage you have submitted under the new SBP?), shows the FSM placed an "X" in the "Yes" block.  The DD Form 1883 also shows the FSM and a witness placed their signatures on the document on 20 May 1980.

	b.  A Property Settlement Agreement, dated 17 April 1997, shows the FSM agreed that the applicant shall be entitled to one-half of the value of his retirement pension through the WVARNG by operation of a QDRO (to be entered into).  The FSM also agreed that the applicant shall remain as the survivor of his WVARNG SBP and that he would make no changes in the plan that would result in the applicant being removed as the survivor through the plan.

	c.  A Circuit Court of Lewis County, West Virginia, Decree of Divorce, shows the applicant and FSM were divorced on 29 May 1997.  It also shows the Property Settlement Agreement, dated 17 April 1997, was ratified, approved, adopted by the court, and incorporated into the divorce order.

	d.  A Circuit Court of Lewis County, West Virginia, QDRO shows the applicant was entitled to one-half (50%) of the FSM's retired pay.  It also shows that the applicant was to be named as a beneficiary of the FSM's SBP and the FSM was to notify DFAS and designate the applicant as the SBP beneficiary.  The QDRO was entered into judgment on 4 June 1998.

	e.  A letter to DFAS from Rxxxxx M. M----, Attorney at Law, dated 11 June 1998, shows that he represented the applicant in the divorce action (involving the FSM).  He forwarded an "Application for Former Spouse Payments from Retired Pay" a certified copy of the QDRO, and the marriage certificate of the parties.

	f.  A West Virginia, Department of Health and Human Resources, Bureau for Public Health - Vital Registration, Certificate of Death, filed on 31 August 2010, shows the FSM died on 16 August 2010.  It also shows the FSM was married at the time of death to Sxxxxx (M----) and she is listed as the informant on the certificate.

	g.  A Military Channel Contacts, Fall 2010, lists the names and organizations of personnel contacted by the applicant from 7 September to 15 November 2010.

	h.  A letter from the applicant to the RSO, MacDill Air Force Base, Florida, dated 4 October 2010, shows she was confirming her telephonic request of
29 September 2010, for former spouse SBP benefits.  She also requested detailed information relating to the decision made in her case and available avenues of appeal.

	i.  A letter from the Deputy Director Operations, DFAS, to the Honorable (Congresswoman) Debbie Wasserman Schultz, dated 7 December 2010, replying to her inquiry regarding the applicant's entitlement to the FSM's SBP annuity.  She was informed that the applicant and FSM were divorced on 29 May 1997 and the FSM did not provide a qualified court order to change his SBP coverage to former spouse coverage within 1-year.  The QDRO, dated 4 June 1998, was received; however, an SBP "deemed election" was not received from the applicant within 1-year.  Since former spouse coverage was not elected by either party within 1-year from the QDRO, the applicant is not entitled to a monthly SBP annuity.

	j.  A letter from the applicant to DFAS, dated 14 February 2011, shows she requested copies of all records relating to the FSM's SBP and beneficiary designation.

	k.  A letter from the Deputy Director Operations, DFAS, to the Honorable Debbie Wasserman Schultz, dated 8 April 2011, replying to her inquiry regarding the applicant's request for information pertaining to the FSM's SBP and beneficiary information.  Copies of information and forms pertaining to the applicant and FSM were provided.  However, DFAS was unable to release any detailed information pertaining to the FSM's retired pay account due to the Privacy Act of 1974.

	l.  ABCMR Docket Number AR2003083486, dated 27 March 2003, corrected the military records of a FSM to show that the FSM requested to change his SBP coverage to former spouse and children coverage and that his request was received and processed by the appropriate office in a timely manner.  The findings of the case show the FSM divorced the applicant (in the case) on
30 August 2000, he died on 15 January 2002, and his marital status at the time of his death was "divorced."  The Board concluded that the applicant was entitled to be paid the SBP annuity, effective 15 January 2002, the date of the FSM's death.

10.  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.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  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:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  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.


12.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1-year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to the provide coverage.

13.  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 1-year after the date of 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 1-year of the date of the court order of filing involved.

14.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age
60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member’s 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the 
election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

15.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show his participation in the SBP with former spouse coverage because the FSM failed to change the designated beneficiary category from spouse to former spouse SBP coverage within 1-year of the date of their QDRO.

2.  Records show the FSM, upon receipt of his 20-Year Letter, elected full immediate spouse coverage under RCSBP.

3.  He was assigned to the U.S. Army Reserve Control Group (Retired Reserve) on 30 July 1994.  

4.  On 17 April 1997, the applicant and FSM entered into a Property Settlement Agreement.  They agreed that the applicant would remain as the beneficiary of the FSM's SBP and that no changes would be made in the plan that would result in the applicant being removed as the survivor through the plan. 

5.  On 29 May 1997, the applicant and FSM were divorced and the Property Settlement Agreement was incorporated into the divorce order.

6.  There is no evidence that the FSM or applicant notified DFAS to change the FSM's RCSBP coverage from spouse to former spouse coverage within 1-year of the divorce decree.

7.  The QDRO, dated 4 June 1998, amplified the applicant's entitlement to the FSM's retired pay.  It also specified that the applicant was to be named as a beneficiary of the FSM's SBP and the FSM was to notify DFAS and designate the applicant as the SBP beneficiary, if he had not done so.

8.  On 11 June 1998, the applicant's attorney forwarded a copy of the QDRO to DFAS for the purpose of ensuring that the applicant received a 50% portion of the FSM's retired pay [emphasis added].

9.  There is no evidence that the FSM or applicant notified DFAS to change the FSM's SBP coverage from spouse to former spouse coverage within 1-year of the QDRO.

10.  The evidence of record shows the FSM married Sxxxxx (M----) in June 2000.

11.  The FSM began receiving Army retired pay in November 2002.

12.  The FSM died on 16 August 2010.  At the time of death he was married.

13.  DFAS confirmed that an SBP annuity has not been paid to the applicant because neither the FSM nor the applicant notified DFAS within 1-year from the date of their divorce to change the FSM's RCSBP beneficiary to former spouse.



14.  It is recognized that the divorce decree awarded the RCSBP to the applicant and specifically ordered the FSM to timely execute all documents necessary to maintain the applicant’s designation as a (former spouse) SBP beneficiary.  Unfortunately, it appears the FSM did not take the action directed by the court, nor did the applicant make a request for a "deemed election" of the SBP.  

15.  Since the FSM died with spouse SBP coverage in effect, his legal spouse at the time of death is the lawful beneficiary of his SBP.  Thus, the Board will not take any action to prevent the lawful beneficiary from receiving those benefits.  To do so would constitute an unconstitutional taking without due process of law.

16.  The Board may not divest the FSM’s widow of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the FSM’s widow as a party in order to protect her property interest and rights.  If the court determines that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for reconsideration.  In the alternative, the Board may reconsider the applicant’s request if she obtains a notarized, sworn affidavit from the FSM’s widow relinquishing her right to the SBP payment.

17.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

18.  As a matter of information, the fact that the FSM had remarried and was married at the time of death is an essential difference between the applicant's case and the case she and her counsel offer as precedent in deciding the applicant's case.
   
   a. Specifically, in the referenced case, the FSM and the former spouse divorced in 2000 and the FSM was not married at the time of death in 2002.
   
   b.  Thus, no other individual had a vested interest in that FSM's SBP annuity.

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)                                         AR20110018472



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018472



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1