IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20110023390 


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 husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce. 

2.  The applicant states:

* to her knowledge, everything was done by the legal system the correct way; she was awarded survivor benefits as part of their divorce
* she had no control over her husband or his attorney in their attempt to find the correct address to mail the paperwork to the right office
* copies of the court order together with the DD Form 2656-5 (Reserve Component Survivor Benefits Plan (RCSBP) Election Certificate) were mailed by certified mail 
* she was told the St. Louis office had moved; she spent countless hours communicating with officials at the Defense Finance and Accounting Service (DFAS) 
* her former husband who is required to complete the paperwork and take action did not do so; she finds herself doing all the work

3.  The applicant provides:

* Orders 343-072 (Retired Reserve)
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* Letters from her divorce attorney
* Superior Court of the State of New York, County of Orange, Court Order – Acceptance for Processing and Amended Court Order – Acceptable for Processing
* Correspondence with and from DFAS
* DD Form 2656-10 (SBP/RCSBP Request for Deemed Election)
* Copies of certified mail receipts
* Letter from DFAS 
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was born on 24 August 1951.  

3.  Having had prior enlisted service in the Regular Army, the FSM enlisted in the ARNG on 14 December 1985.  He and Kaxxxxxn, the applicant, were married on 7 December 1987.

4.  He served in a variety of staff or leadership positions and he attained the rank/grade of sergeant first class (SFC)/E-7.

5.  On 3 March 1998, the New Jersey ARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible, upon application to retired pay at age 60.

6.  There is no indication he completed a DD Form 1883 (SBP - Election Certificate) within 90 days of receipt of his 20-year letter. 

7.  On 9 December 2002, the FSM was honorably discharged from the ARNG and transferred to the Retired Reserve effective 13 December 2002.
8.  On 7 July 2003, he completed a DD Form 2656-5.  He indicated he was married to Kaxxxxxn and they had a dependent child (Emxxx, born on 
13 December 1987).  He elected spouse RCSBP coverage based on the full amount under Option B (elect a beneficiary to receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday).  His spouse, the applicant, was informed and counseled and she agreed with his election.

9.  On 5 March 2009, the Superior Court of the State of New York, County of Orange, NY, issued a Court Order – Acceptable for Processing.  This document states:

* This action for divorce was commenced on 1 May 2006
* The FSM is a member of the U.S. Army
* The applicant is referred to as “Former Spouse of the Participant” in the Uniformed Service Retired Pay Program
* The FSM is to pay to the former spouse fifty percent (50%) of the fractional portion of the disposable military retired pay

10.  On 11 May 2009, by letter from a pension consultant company to the applicant's attorney, an official provided a copy of the court order and advised the attorney that DFAS does not review or provide pre-approval of Domestic Relation Orders.

11.  On 22 June 2009, the Superior Court of the State of New York, County of Orange, NY, issued an Amended Court Order – Acceptable for Processing.  This document states

* This action for divorce commenced on 1 May 2006
* "[Applicant] is awarded a former spouse SBP under the SBP of the Uniformed Services Retired Pay Program"

12.  On 21 July 2009, the applicant's attorney provided DFAS with a copy of the amended court order.

13.  On what appears to be 19 August 2009, by letter, DFAS notified the applicant that:

* Her application for payment of a portion of the FSM's retired pay was received
* The regulation requires DFAS to notify the FSM and provide him with 30 days to provide information regarding the court order
* If the FSM does not provide comments, payment would commence to her within 90 days of his receipt of retired pay
* If her divorce decree specified that she be designated as a former spouse beneficiary for the SBP, she must make a deemed election within one year of the date of divorce directly to DFAS

14.  On 1 September 2009, by letter to DFAS, the applicant stated that her divorce occurred on 10 September 2007; however, due to the court system, lack of correct mailing address, and the delay in the court order being filed and signed, she did not know about the one-year rule.  Additionally, without the signed amended court order, dated 22 June 2009, she was unable to do anything. 

15.  On 30 October 2009, she again wrote to DFAS and requested clarification regarding the letter she received from DFAS in August 2009.

16.  On 13 December 2009, she completed a DD Form 2656-10 wherein she requested a deemed SBP election.  She indicated that she was divorced on 
10 September 2007 and the election is pursuant to requirements of a court order. She also added that the election was being made pursuant to written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution, or annulment, but the voluntary written agreement was not incorporated in, ratified, or approved by a court order.  

17.  On 1 November 2011, DFAS notified her that a spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit.  The only means by which a divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  However, although the service member is limited to filing an SBP election before retirement, the former spouse is not limited as such.  The law provides for an election to be deemed on the basis of a court order or court-approved agreement but the deemed election must be filed by the former spouse and received within one year of the date of the original court order which awarded coverage.  Since the amended court order was issued after the member's retirement date, the amended court order is not valid and does not entitle her to former spouse SBP.  Additionally, the request for former spouse coverage to be deemed was received in excess of the one year period following the court order awarding SBP coverage.  

18.  The FSM turned 60 on 24 August 2011. 

19.  Per phone conversation between the analyst of record and officials at the U.S. Army Human Resources Command (HRC), Fort Knox, KY, on 28 June 2012, the FSM's records at HRC show he has not applied for retired pay despite having reached age 60 and having been mailed the appropriate documents.

20.  DFAS officials could not confirm if the FSM has remarried. 

21.  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.

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

23.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Members had 90 days from receipt of their 20-year letter to make their election, or else election automatically defaulted to option A.

24.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections:

* option A (defer enrollment to age 60)
* option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and children at less than maximum amount or enroll children only)
* option C (enroll and pay annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only) 

25.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

26.  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.

27.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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.  The FSM was issued a 20-year letter on 3 March 1998.  There is no indication he completed a DD Form 1883 (SBP - Election Certificate) within 90 days of receipt of his 20-year letter.  By failing to make an election, he, in effect, deferred his election to age 60.  

2.  It appears that subsequent to his transfer to the Retired Reserve, the FSM submitted a DD Form 2656-10, dated 7 July 2003, wherein he elected enrollment in the RCSBP, spouse coverage, under Option B.  This means in the event he died before reaching age 60, his beneficiary would have been entitled to an annuity; however, he would not have to pay premiums for this coverage until age 60.  It is unclear why he made this election since he was not 60 years of age yet. It is equally unclear if DFAS accepted this document as it was an invalid election. 

3.  The FSM and the applicant were divorced in March 2007.  Their divorce decree stipulated that she would receive a portion of his retired pay and she would be a former spouse beneficiary.  However, the FSM did not change the SBP election he made in July 2003 from "spouse" coverage to "former spouse" coverage and the applicant did not deem the election within 1 year of the divorce. 

4.  Furthermore, despite reaching age 60, the FSM has not submitted an application for retired pay.  Additionally, it is unclear if the FSM has remarried.  In any case, since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they have been married for at least 1 year. 

5.  Notwithstanding the applicant's sincerity, the ABCMR may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for so doing would deprive a potential spouse – if the FSM has remarried - of a property interest without due process of law.  The ABCMR would accept a reconsideration (emphasis added) request if accompanied by a signed, notarized declaration from the applicant affirming her former husband has not remarried or if remarried, a signed, notarized statement from his current spouse renouncing or relinquishing any interest in the SBP annuity.  

6.  In view of the foregoing evidence, there is insufficient evidence to support granting the 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)                                         AR20110023390



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ABCMR Record of Proceedings (cont)                                         AR20110023390



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