IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110020075 


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 correction of the records of her former husband, a recently retired service member (SM), to show she timely deemed his Survivor Benefit Plan (SBP) election within 1 year of their divorce in 1995.

2.  The applicant states:

* Her final divorce decree, dated 19 December 1994, stipulated she would be the beneficiary of the SM's SBP annuity
* In February 1995, she received a letter from the Garnishment Department indicating her request was received and upon the SM's retirement, her file would be reviewed
* The letter she received was not specific; she assumed everything stated in the divorce would be carried out
* She called the benefits office several times over the past 16 years and her attorney submitted the necessary paperwork for a deemed election
* Her attorney submitted a signed copy of the deemed election and she kept an unsigned copy, not knowing she would need it in the future
* Her paperwork has not been handled professionally and she has faxed several documents on multiple occasions
* She is already receiving a portion of the SM's retirement pay but she is not the beneficiary of his SBP election
* She was a young mother at the time and did not fully understand all the military rules and laws

3.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, dated 9 August 2011
* Letter from DFAS – Cleveland Center, dated 21 July 1997
* Letters from DFAS – Indianapolis Center, dated 10 February 1995
* Letter from her lawyer to DFAS – Cleveland Center, dated 14 August 1997
* Letter from DFAS – Cleveland Center, Garnishment Operations, dated
27 September 2010
* Letter from her to DFAS – London Center (KY), dated 4 January 2011
* Divorce decree, dated 9 December 1994

CONSIDERATION OF EVIDENCE:

1.  The SM enlisted in the Regular Army on 1 July 1982.  He and Maria, the applicant, were married on 29 March 1984.

2.  The SM served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of first sergeant (1SG)/E-8.

3.  On 30 November 1994, the SM and the applicant entered into a settlement agreement.  Their agreement stated:

	a.  Wife [Applicant] is entitled to retirement benefits and the parties have agreed that wife shall receive 25% of the husband's retirement benefits among other things.

	b.  Wife [Applicant] shall receive payment of her portion when husband's [SM] benefits commence, before retirement or at retirement, and said benefits shall continue thereafter as allowed by applicable law, including wife being named by husband when he retires and/or when he is entitled to elect who shall receive his SBP as recipient of 50% of the survivor benefits.  Husband (SM) shall be required to complete fully, properly, and expeditiously and promptly return any and all required forms, documents, and information for this protection and direct payment from husband's U.S. Army pay under the Uniform [sic] Services Former Spouses' Protection Act, Public Law 97-252, Title 10, U.S. Code, section 1408, as amended.

4.  On 19 December 1994, their settlement agreement was incorporated into their final divorce decree.

5.  On 4 March 1995, the SM married A--.  They had two children, D-------s, born on 13 February 1996, and A---e, born on 17 November 1998.

6.  The SM retired on 31 August 2010 and he was placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 September 2010.

7.  In connection with his retirement, the SM completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to A-- and they had two dependent children.  He elected SBP coverage for children only based on the full gross amount.  His spouse, A--, concurred with his election.

8.  The applicant submits the following letters/documents from or to DFAS officials: 

	a.  Letter, dated 10 February 1995, wherein an official at DFAS – Indianapolis Center notified her that her request for direct payments from the SM's retired pay was received and would be kept on file.  Once the SM retires, her file would be reviewed and she would be notified of the amount of retired pay she would receive.  

	b.  Letter, dated 21 July 1997, wherein an official at DFAS – Cleveland Center notified her that her application for a portion of the SM's retired pay was received and that by regulation, the SM must be notified to allow him an opportunity to contest the court order.  The letter also reminded her that if her divorce decree specified she be designated as a former spouse beneficiary for the SBP, she must deem the SBP election within 1 year of the date of the divorce.

	c.  Letter, dated 14 August 1997, from her divorce attorney to DFAS – Cleveland Center, wherein her civilian attorney informed DFAS officials that this letter, with the applicant's name and signature, served as a notification that she be designated the former spouse beneficiary for the SBP.  She essentially requested to deem the SBP election for 50% of the SM's survivor benefits. 

	d.  Letter, dated 27 September 2010, from DFAS – Cleveland Center, wherein a DFAS official notified her that payment of a portion of the SM's retired pay would commence in November 2010.  The letter also reminded her that if her divorce decree specified she be designated as a former spouse beneficiary for the SBP, she must deem the SBP election within 1 year of the date of the divorce directly to the DFAS Retired Pay Office. 

	e.  Letter, dated 4 January 2011, from the applicant to DFAS – London wherein she expressed her disappointment and frustration regarding the several attempts she made and the conflicting information she received from various DFAS representatives. 

	f.  Letter, dated 9 August 2011, from DFAS – Retired and Annuity Pay, wherein a DFAS official notified her of the various laws associated with SBP eligibility of a former spouse and the law regarding a deemed election.  The official further informed her that her deemed election needed to be made within
1 year from the divorce decree and that the deemed election she submitted and received on 4 January 2011 was invalid because it was not signed.

9.  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.

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

11.  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 applicant and the SM were married on 29 March 1984 and they were divorced on 19 December 1994.  Their divorce decree stipulated the applicant would receive 25% of the SM's retired pay and she would be named a beneficiary of 50% of his SBP at the time of his retirement.

2.  The applicant in this case inquired about payment of a portion of the SM's retired pay and she received a letter from DFAS - Indianapolis Center on 10 February 1995 advising her that her file would be reviewed upon the SM's retirement.  She then received a letter from DFAS - Cleveland Center on 21 July 1997 regarding the division of property between her and the SM and reminding her that if her divorce decree designated her as a former spouse beneficiary, she could deem the election within 1 year of their divorce.

3.  She provides a letter, dated 14 August 1997, from her attorney to DFAS - with her signature - making a deemed election for the SBP coverage based on her final divorce decree that stated she would receive 50% of the SM's SBP benefits. This letter was made nearly 3 years after their divorce.

4.  SBP election is by category, not by name.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit.  However, a divorced spouse may receive SBP annuity benefit if the former spouse coverage is elected or if the election is deemed (under certain conditions).  

5.  By law, a former spouse can request SBP coverage be deemed.  A former spouse election can be deemed when a retiree agrees in writing to provide annuity coverage if the agreement has been approved by a court order.  Coverage may also be deemed if the retiree is ordered by the court to make a former spouse election.  A request to deem an election must be submitted within 1 year from the date of the divorce or court order.

6.  The SM did not make a "former spouse" SBP election and the applicant did not deem the election within 1 year of the divorce.  There are two requirements for a deemed election to be valid: the divorce must clearly indicate the former spouse is entitled to coverage under the SBP and the deemed election must be received within 1 year of the divorce.  Although the applicant provided communication with DFAS, there is no record of her submitting a deemed election to DFAS within 1 year of her divorce.

7.  In view of the foregoing, regretfully, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110020075



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020075



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1