IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110025171 


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 retired service member (SM), requests reconsideration of her earlier request for correction of the SM's records to show she made a timely written request for a deemed election of the SM’s Survivor Benefit Plan (SBP).  

2.  The applicant defers her statements to counsel.

3.  The applicant provided letters of release from the SM and his current spouse, dated 8 December 2011.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of the records of the SM to show his former spouse, the applicant, made a timely written request for a deemed election of the SM’s SBP, to name the applicant as the beneficiary of his SBP, and payment of all back SBP payments after the SM’s 1 August 2000 termination of the SBP.

2.  Counsel states in satisfaction of the Board's direction that the applicant obtain a release of the SM's current spouse's SBP interests, the applicant submits letters from both the SM and his current spouse releasing any interest in SBP in favor of the applicant.

3.  Counsel provides the following new evidence:

* Release letter from the SM, dated 8 December 2011
* Release letter from the SM's current spouse, dated 8 December 2011
* California All-Purpose Certificate of Acknowledgement, from the SM, dated 9 December 2011
* California All-Purpose Certificate of Acknowledgement, from the SM's current spouse, dated 9 December 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011848 on 16 December 2010.

2.  The applicant submitted two letters by the SM and his current spouse relinquishing SBP rights in her favor.  This evidence was not previously considered.  Therefore, it is considered new evidence and as such warrants consideration by the Board.  

3.  The applicant and the SM were married on 16 July 1964.  

4.  The SM retired on 31 December 1982.  His DA Form 4240 (Data for Retired Army Personnel) shows he elected to participate in the SBP for spouse and dependent children coverage at that time.

5.  The applicant and the SM divorced on 1 August 2000.  A court order for division of retired pay was issued on 22 January 2001.  This order stated that if the retired SM predeceased his former spouse she would receive survivor benefits from his SBP.  The SM was ordered to enroll in the SBP and elect the former spouse option.  

6.  As stated in the previous Record of Proceedings, on 28 September 2001 she received a letter from the Defense Finance and Accounting Service (DFAS), Garnishment Operations which stated, "If your divorce decree specifies that you are to be designated as a former spouse beneficiary for SBP, you must make a "deemed election" for SBP coverage within one year of the date of your divorce."  There is no indication in the available record to show she or her attorney followed up prior to 22 January 2002.  

7.  On 31 May 2001, the SM had directed DFAS to terminate all SBP elections as of 1 August 2000, and DFAS accordingly terminated the election on that date.

8.  The SM provided a letter, dated 8 December 2011, wherein he stated that he fully supported the assignment of his SBP benefits to his former spouse in accordance with the court order which was filed on 22 January 2001.  He further stated he was making the release in the interest of justice.  A California All-Purpose Certificate of Acknowledgement, dated 9 December 2011, was attached to this letter, and signed by a notary public indicating the attached letter had been notarized.

9.  The SM's current spouse provided a letter, dated 8 December 2011, wherein she stated she was voluntarily releasing any and all interests she may have had or be deemed to have in relations to the SM's SBP.  She further stated she was making the release in the interest of justice because she was aware her husband had agreed to provide SBP coverage to his former spouse.  A California All-Purpose Certificate of Acknowledgement, dated 9 December 2011, was attached to this letter, and signed by a notary public indicating the attached letter had been notarized.

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), dated 8 September 1982, established SBP coverage for former spouses of retiring members and Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

13.  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 one 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.

14.  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 applicant and the SM divorced on 1 August 2000.  The court order for division of retired pay issued on 22 January 2001 directed continued SBP coverage for the SM's former spouse.  This order specifically directed him to execute all documents necessary to maintain the applicant’s designation as a former spouse SBP beneficiary.  However, he did not comply with the order and directed DFAS to cancel all SBP payments as of 1 August 2000.  

2.  There is evidence the applicant attempted to file the proper paperwork to request a former spouse SBP coverage election in September 2001; however, there is no evidence in the available record to show whether or not she followed up on her request before 22 January 2002.  

3.  When the SM applicant remarried, his current spouse obtained a vested interest in the SBP on their first anniversary.  However, his current spouse now relinquishes any entitlements to her husband's SBP in favor of the former spouse, the applicant.  

4.  Therefore, sufficient evidence exists to correct his SBP coverage to "former spouse" and, as such and only as a matter of equity, his record should be corrected to show the applicant made a deemed request for the SBP within one year of their divorce and that her request was received and processed by DFAS in a timely manner and that the SBP coverage was not terminated.

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 amendment of the ABCMR’s decision in Docket Number AR20100011848, dated 16 December 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

* the applicant made a deemed request for former spouse SBP coverage within one year of their divorce on 1 August 2000
* her request was received by DFAS and processed by the appropriate office in a timely manner
* the SBP coverage was not cancelled and the SM should be notified of any expense he may incur as a result of this correction to his record



      _______ _   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)                                         AR20110025171



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ABCMR Record of Proceedings (cont)                                         AR20110025171



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