IN THE CASE OF:	  

		BOARD DATE:	    29 May 2012

		DOCKET NUMBER:  AR20110020758 


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 a Survivor Benefit Plan (SBP) election of "former spouse" and entitlement to an SBP annuity based on the FSM’s death.

2.  The applicant states the original "former spouse" SBP election made in a 
DD Form 1883 (SBP Election Certificate), dated 19 June 2000, was correct based on their divorce decree and should supersede the 2004 SBP election made by the FSM.

3.  The applicant provides the following documents:

* FSM's Certification of Death
* DD Form 1883, dated 19 June 2000
* DD Form 2656 (Data for Payment of Retired Personnel), dated
25 March 2004
* Divorce Decree, dated 26 July 2000
* Qualified Domestic Relations Order (QDRO), Military Retirement Benefits Agreement, dated 3 July 2001
* DD Form 2762 (Direct Deposit Authorization), dated 15 July 2011
* DD Form 2656-7 (Verification for Survivor Annuity), dated 15 July 2011
* Attorney letter and Deemed Election Notice


CONSIDERATION OF EVIDENCE:

1.  The record shows the FSM served on active duty in the Regular Army from
30 July 1980 through 27 July 1984, at which time he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) in the rank of sergeant (SGT).

2.  On 16 July 1982, the FSM and applicant were married.

3.  On 10 August 1984, the FSM enlisted in the Army National Guard (ARNG).  He served in various ARNG statuses until 31 March 2004, at which time he entered active duty in the Active Guard Reserve (AGR) program.

4.  The FSM’s Official Military Personnel File (OMPF) contains a DD Form 1883, dated 19 June 2000, wherein the FSM elected "Former Spouse and Children" coverage based on the full amount of his retired pay under Option C (Immediate Coverage).  (Former spouse coverage was not a listed item on this version of the form, but a typed entry was added.)  The FSM and the applicant authenticated this document with their signatures.

5.  On 26 July 2000, the FSM and applicant were divorced in Chittenden County, Vermont.  The divorce decree states the applicant was awarded an interest in the FSM’s military retirement payment benefits equal to one-half portion of those benefits earned during the parties’ marriage, including benefits earned during the marriage but not yet vested, that portion to be determined in accordance with Vermont law.  It further stated this award would be incorporated into a QDRO which would include the FSM’s agreement to elect to make the applicant and their child the irrevocable beneficiaries of the SBP.  The former spouse would be the FSM’s irrevocable beneficiary of the SBP at shared expense and applicable to both pre-retirement and post-retirement death [benefits] of the FSM.

6.  A QDRO, dated 3 July 2001, establishes the applicant as the former spouse and as the FSM’s irrevocable beneficiary of the SBP annuity through the FSM’s military retirement.  It further indicates the FSM agreed to make the election in a timely manner to effectuate the SBP coverage for the former spouse and to execute such paperwork as was required.

7.  On 3 July 2001, the applicant’s attorney submitted a letter to the Defense Finance and Accounting Service (DFAS) forwarding the QDRO and requesting a deemed election of SBP coverage based on the QDRO.  Included with the letter was a deemed SBP election notice signed by the applicant on 3 July 2001.

8.  The FSM’s OMPF also contains a DD Form 2656 completed by the FSM on 25 March 2004, wherein he elected "children only" coverage based on full gross retirement pay without supplemental coverage.  In this document, the FSM indicated he did not have a spouse.

9.  On 31 March 2004, the FSM was honorably retired in the rank of sergeant first class (SFC), after completing 21 years, 10 months, and 4 days of creditable active service.  He died on 11 July 2011.  His death certificate shows he was married at the time.

10.  The SBP election on file in the DFAS record is "Child Only" and was based on the 25 March 2004 DD Form 2656 completed by the FSM.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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.  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.  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 or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the FSM’s record to show a former spouse SBP election was made within 1 year of their divorce has been carefully considered and found to have merit.
2.  On 19 June 2000, the FSM completed a DD Form 1883 electing "Former Spouse and Child" RCSBP coverage under Option C (Immediate Coverage).

3.  On 26 July 2000, the FSM and applicant were divorced.  The property division portion of the divorce decree stated the applicant was awarded an interest in the FSM’s military retirement payment benefits.  The divorce decree further stated this award would be incorporated into a QDRO which would include the FSM’s agreement to elect to make the applicant, as the former spouse, and their child irrevocable beneficiaries of the FSM’s SBP.

4.  On 3 July 2001, a QDRO was issued by the Chittenden Family Court.  The QDRO included the FSM’s agreement to elect to make the applicant, as the former spouse, and their child the irrevocable beneficiaries of the FSM’s SBP at shared expense and applicable to both pre retirement and post retirement death [benefits] of the FSM.  The applicant’s attorney forwarded the QDRO and a deemed election notice on behalf of the applicant to DFAS on 3 July 2001.

5.  Although the applicant’s death certificate indicates he has a new spouse, the DFAS record confirms the SBP election on file for the FSM is "Child Only" coverage based on the DD Form 2656 he completed on 25 March 2004.  Therefore, there is no SBP annuity conflict between the applicant and the widow.

6.  In view of the fact the divorce decree stipulated the FSM would continue to carry SBP coverage for the applicant as a former spouse and based on the applicant’s deemed election of 3 July 2001, it would be appropriate to correct the record of the FSM by voiding his "Child Only" SBP election of 25 March 2004 and to show the deemed election request of the applicant was accepted on 
3 July 2001.  Further, based on the acceptance of this election the applicant should be paid any SBP annuity due since the date of the FSM’s death.  All premium costs associated with the election change will be borne by the applicant. 

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 a request for a deemed former spouse election was timely processed and accepted within 1 year of the divorce;

	b.  providing the applicant a full coverage SBP annuity as the former spouse election from the day after the FSM’s death; and

	c.  charging any premium costs associated with this election and the coverage change to the applicant.



      ___________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)                                         AR20110020758



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ABCMR Record of Proceedings (cont)                                         AR20110020758



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