IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120003914 


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 reconsideration of the Board's denial of her previous request for correction of her deceased former spouse's records, a former service member (FSM), to show he elected her as his former spouse to be the beneficiary of his Survivor Benefit Plan (SBP).  In the alternative, she requests that the Army provide 45 percent of the SBP annuity to her.

2.  She states an Ohio State court ordered enforcement of a qualified domestic relations order (QDRO) requiring her former spouse and the Army to place her 45-percent share of her former spouse's retirement in a separate single-life annuity for the entirety of her life.  On 12 January 1994, the Army advised that it would honor the court order and the separate single-life annuity contained therein.  After the FSM's death, the Army refused to honor the QDRO.  She requests reinstatement of this single-life annuity and termination only upon her death as required by the court order.  She further states the Army's election to terminate the separate single-life annuity is in violation of the court order.  The QDRO, which the Army explicitly acknowledged it would recognize, required her share to be placed in a separate single-life annuity for her lifetime.  Unbeknownst to her, her former spouse made an SBP election for his new spouse that violated the court order.  Upon the FSM's death, the Army ceased to honor the court order and instead provided SBP benefits to the FSM's new spouse.

3.  The applicant provides copies of:

* Nunc Pro Tunc (now for then, meaning applied retroactively) Order, dated 17 November 1993
* Defense Finance and Accounting Service (DFAS) letter, dated 7 December 1993
* letter, dated 28 December 1993, reflecting issuance of nunc pro tunc order
* DFAS letter, dated 12 January 1994, reflecting the U.S. Army's agreement to honor the QDRO
* letter from Ms. L____ G. J____, Attorney at Law, dated 28 June 2010
* DFAS Retired and Annuity Pay letter, dated 14 February 2011
* letter from the Army Board for Correction of Military Records (ABCMR), dated 8 April 2011, with Record of Proceedings, Docket Number AR20100018306
* letter from Ms. L____ G. J____, Attorney at Law, to the ABCMR, dated 14 June 2011
* letter from the Army Review Boards Agency (ARBA), Congressional and Special Actions to Ms. L____ G. J____, Esquire, dated 11 July 2011, reflecting administrative errors made by the Board in the processing of this case
* letter, from B____, G____, and L____, Limited Liability Partnership, dated 7 February 2012

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request for reconsideration be honored and that her benefits be restored in accordance with the court order.

2.  Counsel states the Board's previous conclusions are based on a DFAS advisory opinion to which the applicant had no opportunity to review or comment because the Board inadvertently sent a copy of the advisory opinion to a bad address for the applicant's former counsel and that same counsel did not receive a copy of the Record of Proceedings.

	a.  Moreover, the advisory opinion and the discussion and conclusions of the Board are substantively incorrect because the FSM was required to make such an election and the applicant did, in fact, make such an election within 1 year of the nunc pro tunc court order.  The fact that the FSM's second spouse is currently receiving SBP benefits does not impact the enforceability of this court order.  In paragraph 3 of its conclusions, the Board noted the current recipient of the FSM's SBP benefits "would have to agree to forfeit her entitlement" to SBP benefits in order for an award to be made to the applicant.  There is no basis in the statute or regulations for this conclusion.

	b.  Counsel contends the Board's original decision placed form over substance.  The Army explicitly approved QDRO language in the nunc pro tunc order that specifically noted the applicant had a "fully vested and non-forfeitable interest in the benefits assigned" thereunder.  The DFAS advisory opinion incorrectly determined that this nunc pro tunc order did not contain specific language directing the FSM to enroll the applicant in the SBP for former spouse coverage.  Notably, the Board stated in its original decision that the nunc pro tunc order could fairly be interpreted to have intended such a result.

	c.  The new evidence submitted in this application for reconsideration shows the present record is in error and is unjust.  The earlier decision of the Board was based on a procedurally and substantively deficient advisory opinion from DFAS.  There is now a sufficient basis for granting relief to the applicant in this case.

3.  Counsel provides no additional evidence.

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 ABCMR in Docket Number AR20100018306 on 5 April 2011.

2.  The counsel's argument that the applicant was not afforded an opportunity to address the errors contained in the DFAS advisory opinion because the Board inadvertently sent a copy of the DFAS advisory opinion to the address of the applicant's former counsel and that same counsel did not receive a copy of the Record of Proceedings is a new argument.  As such, it merits consideration by the Board.

3.  The FSM married the applicant on 12 September 1972 and enlisted in the Regular Army on 19 September 1972.

4.  The FSM continued to serve through a series of reenlistments and was promoted to pay grade E-8 on 1 January 1990.

5.  On 30 June 1993, the FSM retired.  He was placed on the Retired List effective 1 July 1993.

6.  On 17 November 1993, the applicant was granted a divorce from the FSM in Jackson County, Ohio.  Sections 4 and 5 of the nunc pro tunc order directed that the applicant receive a single-life allotment equal to 45 percent of the FSM's Army retired pay benefits on the date the FSM retires from the military.

7.  The applicant submits a letter from DFAS, dated 7 December 1993, which states that after the FSM retires the applicant's application for direct payments from the FSM's U.S. Army retired pay would be further reviewed and the applicant would be notified of the amount of retired pay to be sent monthly in accordance with the court order and applicable provisions of law or the reasons why DFAS could not comply with the court order.

8.  The applicant submits a letter from DFAS, dated 12 January 1994, in reference to the applicant's request for direct payments for division of property from the FSM's retired pay and the court order and supporting documents served in the applicant's request.  The letter states the court order would be honored by the U.S. Army and the estimated payments in the approximate amount of $557.10 (before applicable taxes) would begin on or about 5 February 1994.

9.  The FSM remarried and made an SBP election for his new spouse.  That election was in effect when he passed away on 1 June 2010.  His new spouse is presently receiving his SBP annuity.

10.  A letter from the applicant's counsel at the time to the Board, dated 28 June 2010, states the applicant was granted a property settlement of that "portion of the FSM's military retirement pension benefits which is equal to one-half (1/2) of the amount attributable to 19 years of military service."  Pursuant to the Uniform Services Former Spouse's Act, the applicant, through counsel's office, sent an application for direct payment of her share of the retirement to the DFAS-Indianapolis Center.  Certified copies of the parties' final divorce decree and QDRO were also sent.  On 23 November 1993, a nunc pro tunc order was sent to DFAS requiring the Army to take 45 percent of the FSM's retirement and place it in a single-life annuity for the applicant giving her full vestment and a nonforfeitable interest in said annuity for her lifetime.

11.  In the processing of the original case, an advisory opinion was obtained from DFAS which essentially states that in regard to the SBP, the applicant's court order was unenforceable because the language of the order did not specifically direct the FSM to elect SBP coverage for his former spouse.  DFAS also stated that there was no deemed election on file and no enforceable order from which a deemed election might have been established.

12.  The advisory opinion was inadvertently sent to the address for the applicant's former counsel for comment resulting in no response being received by the staff of the Board.

13.  The applicant and her current counsel now provide a response to the DFAS advisory opinion.  The Board decision was based in part upon an advisory opinion that the QDRO and related orders from the Jackson County, Ohio, Common Pleas Court did not qualify as enforceable former spouse SBP orders.  Specifically, the DFAS opinion claimed the order was ambiguous regarding the SBP and did not specifically direct the deceased FSM to elect SBP coverage for his former spouse.

	a.  The question posed to DFAS was "whether the applicant had been awarded SBP entitlement and, if so, when did it start or was [sic] terminated."  DFAS concluded the QDRO and the nunc pro tunc order issued by the Jackson County Common Pleas Court on 17 November 1993 was ambiguous concerning SBP benefits.  This conclusion was incorrect.  In reviewing the nunc pro tunc order, it should first be noted that the FSM was listed as a defendant as was the U.S. Army.  At the time the nunc pro tunc order was issued, the FSM was already retired from the Army.  The court order specifically directed that the FSM "[i]mmediately upon journalization of this Stipulated QDRO, shall furnish a copy of this order to the Plan Administrator of the Plan for certification as a QDRO."  This is a specific order from the court directing the FSM to enroll the applicant in SBP, since the QDRO plainly included these benefits in the property distribution between the parties.  The nunc pro tunc order goes on to provide the applicant with the discretion to fulfill the FSM's obligations under this section.  These explicit directions to the FSM are contained in section 8 of the nunc pro tunc order.

	b.  In keeping with this order, former counsel for the applicant submitted the nunc pro tunc order to Ms. V____ L. V____, a paralegal specialist in the Office of General Counsel for DFAS.  Based on the receipt of this order and the effective "deemed election" of the applicant, Ms. V____ advised that the Jackson County, Ohio, court order "will be honored by the U.S. Army."  In accordance with Title 10, U.S. Code, section 1450(f)(3)(c), this election was made by the applicant within 1 year of the date of the nunc pro tunc order.

14.  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.

15.  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.  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:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.

16.  The USFSPA also addressed allowing of division of retired pay directed by State courts.

17.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

18.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to 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.  Incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce.  Counsel contends DFAS received such a request (court order) and that DFAS indicated it would honor the order.  Although evidence indicates DFAS acknowledged the applicant was to receive 45 percent of the FSM's current retired pay, there is no evidence that DFAS interpreted the court order to be a request for the FSM to enroll the applicant in the SBP with former spouse coverage nor was it cast as a request for a deemed election.  This is supported by the DFAS advisory opinion indicating the court order was ambiguous in this regard and did not contain specific language directing former spouse SBP coverage.  It is also supported by the fact the court described the “45 percent of the FSM’s Army retired pay benefits on the date the FSM retires from the military” as an allotment, not an annuity.  An SBP annuity would not have been paid until after the FSM had died, not after he had retired.

2.  Counsel states, in effect, that the court order specifically directed the FSM to enroll the applicant in the SBP and in the alternative went on to provide the applicant with the discretion to fulfill the FSM's obligations under this section.  DFAS officials opine that there was no deemed election on file and no enforceable order from which a deemed election might have been established.  Though it may have been the intent for the court order to convey that the FSM was required to enroll the applicant in the SBP for former spouse coverage, the order does not contain language directing the FSM to do so.  As such, it is reasonable to presume that DFAS would have found no reason to question the FSM's application for enrollment of his new spouse in the SBP with spouse beneficiary coverage.

3.  The FSM died with an SBP spouse election in place and was married at the time.

4.  In order for the Board to award the applicant the FSM's SBP benefits, the current recipient (FSM's spouse at the time of his death) would have to agree to forfeit her entitlement beginning on the date of the FSM's death or would have to be ordered to do so by a court of competent jurisdiction.

5.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100018306, dated 5 April 2011.



      ____________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)                                         AR20120003914



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ABCMR Record of Proceedings (cont)                                         AR20120003914



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