IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20110024815 


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 her former spouse's record, a retired former service member (FSM), to show she made a proper Survivor Benefit Plan (SBP) deemed election within the required time frame.

2.  The applicant states that while the proper document may not have been filed within 1-year of her divorce, the divorce court had granted her a portion of her former spouse's retirement pay and granted her an irrevocable entitlement to SBP coverage.

3.  The applicant provides:

* her Final Decree of Dissolution of Marriage, filed on 25 January 2010
* a DD Form 2656-10 (SBP Request for Deemed Election), dated
15 December 2011

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel submits no additional argument or contentions but provides:

* A memorandum to the FSM from the U.S. Army Reserve Personnel Center, St. Louis, Mo, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 3 February 1993
* DD Form 1883 (SBP Election Certificate), dated 5 April 1993
* 
Counsel's request to the U.S. Army Human Resources Command,
St. Louis, MO (HRC-STL) for the applicant's retirement information, dated 3 April 2007
* An HRC-STL response letter to counsel, dated 1 March 2007
* A DD Form 2656 (Data for Payment of Retired Personnel), dated 3 March 2008
* An HRC-STL letter to the FSM approving his application for retired pay, dated 1 August 2008
* A Judgment and Final Decree of Legal Separation, dated 24 June 2009
* An Order Dividing Military Retirement, dated 24 June 2009
* A DD Form 2293 (Application for Former Spouse Payments from Retired Pay), dated 11 August 2009
* A DD Form 2656-10, dated 15 December 2011

CONSIDERATION OF EVIDENCE:

1.  The retired FSM was born on 5 October 1948 and he entered enlisted military service on 19 July 1967.  He received a National Guard commission on 17 May 1976 and shortly thereafter he transferred to the U.S. Army Reserve (USAR).

2.  The FSM and the applicant were married on 25 November 1975.

3.  The FSM received his 20-Year Letter on 3 February 1993 and he completed an SBP election form on 5 October 1993.  He elected full annuity coverage for spouse and children with immediate coverage (Option C).

4.  On 1 March 2007 and again on 3 April 2007, the applicant's counsel requested information related to the FSM's retired pay and military benefits for retired former spouses in concert with divorce proceedings from HRC-STL.

5.  On 1 May 2007, HRC-STL provided counsel the requested information.  No reference to SBP filling requirements was included in the information provided to counsel.

6.  The FSM applied for receipt of retired pay on 3 March 2008.  In the remarks block of the DD Form 2656, he stated that he and his spouse were separated and going through divorce proceedings.

7.  On 1 August 2008, HRC-STL notified the FSM that his request for receipt of retired pay had been approved.  

8.  On 5 October 2008, the FSM was transferred to the Retired List.

9.  On 24 June 2009, a New Mexico district court granted the applicant's request for a legal separation.  The court order included the provisions that the applicant would receive a 40% apportionment of the FSM's military retired pay, the applicant would pay the cost of continuing the SBP coverage, and she was to be shown as the sole beneficiary of the SBP benefits. 

10.  On the same date, a separate court order was issued specifically ordering the division of the FSM's military retirement pay.  This order stated the applicant would receive a 40% apportionment of FSM's retired pay less the cost of SBP.  The court order also directed the FSM to execute all paperwork necessary to comply with the court order and to initiate a former spouse SBP election.

11.  On 11 August 2009, the applicant submitted a DD Form 2283 claiming an apportionment of the FSM's retired pay.  The instructions on the application required the submission of the court order or other legal documentation directing the apportionment.

12.  There is no indication that HRC-STL or the Defense Finance and Accounting Service (DFAS) notified the applicant of the requirement to submit the specific SBP Deemed Election form at the time of the apportionment.

13.  On 25 January 2010, the New Mexico district court issued a Final Decree of Dissolution of Marriage that incorporated the earlier separation and property distribution order.

14.  On 15 December 2011, the applicant submitted an SBP Deemed Election that appears to have been rejected by DFAS because it was not received within 1 year of the final divorce decree.

15.  A review of the FSM's pay record at DFAS shows the applicant is receiving the court-directed 40% apportionment and that SBP premiums are being withheld from the FSM's retirement pay; however, the election status is still shown as spouse and child.  There is no indication the FSM remarried since his divorce from the applicant, as the spousal interest in the SBP would have vested in his new spouse upon the first anniversary of that marriage.  The Board would be unable to vest the new spouse of her interest without her consent or a valid court order to which all interested parties had been joined.


16.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions 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.

17.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was required by court order to properly submit all necessary documentation to continue SBP coverage and convert it to a former spouse election.  He does not appear to have complied completely with the court order.

2.  Prior to the final divorce degree, the applicant submitted her request to DFAS for apportionment for the RSM's retired pay.  In concert with that request, a copy of the separation agreement including the court ordered SBP election was provided.

3.  While the retirement apportionment to the applicant was complied with, no one notified either the applicant, her counsel, or the FSM of the requirement to specifically submit the request on a DD Form 2625-10.

4.  It is unrealistic to presume that the applicant would have been aware of the requirement to submit the specific necessary form at the time of her divorce.

5.  Therefore, it would be appropriate at this time to rectify the injustice by the applicant's request and correct the FSM's record to show she submitted the SBP deemed election within the required 1-year period of her 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 retired FSM concerned be corrected by:

	a.  showing the applicant made a deemed election within 1 year of her divorce;

	b.  showing DFAS timely received and processed her deemed election; and

	c.  correcting the FSM's record to change his SBP election from spouse to former spouse.



      ___________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)                                         AR20110024815



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024815



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1