IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120006783 


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 reinstatement of the Survivor Benefit Plan (SBP) coverage to her.  In effect, she requests the records of her former husband, a retired service member (RSM), be corrected to show he elected SBP coverage for former spouse. 

2.  The applicant states neither she nor her attorney were aware that a deemed election had to be submitted within 12 months of the divorce.

3.  The applicant provides:

* 2008 General Judgment of Name Change (Adult)
* 2006 Declaration in Support of Entry of Decree of Dissolution
* 2006 Findings of Fact and Conclusion of Law
* Two 2011 letters from the Defense Finance and Accounting Service (DFAS)
* Letter from an attorney to the applicant

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 RSM's records show he was born on 21 September 1963. 

3.  He enlisted in the Regular Army on 12 April 1984 and he held military occupational specialties 92A (Automated Logistical Specialist) and 19K (M1 Armor Crewman).  

4.  He and Cathrin, the applicant, were married on 9 September 1986.

5.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of master sergeant (MSG)/E-8.

6.  On 8 June 2006, in connection with his upcoming retirement, he submitted a DD Form 2656 (Date for Payment of Retired Personnel).  He indicated he was married to Cathrin, the applicant, and they had two dependent children, Brian, born on 22 February 1996, and Christopher, no date of birth is listed.  He elected SBP coverage for spouse and children based on the full amount.  His spouse, Cathrin, the applicant, concurred with his election.  

7.  He retired on 31 August 2006 and he was placed on the retired list in his retired rank/grade of MSG/E-8.  

8.  On 23 June 2008, the applicant petitioned the Superior Court of Washington for dissolution of her marriage from the RSM.  The petition stated that they had been separated since 18 July 2006 and that they had one child, Brian.

9.  On 27 June 2008, the Superior Court of Washington issued a Findings of Fact and Conclusions of Law.  With this document, a Distribution of property document is attached.  It states in item 5 "Husband shall name the wife as beneficiary and elect coverage under the Survivor Benefit Plan.  Husband shall provide proof of beneficiary election within thirty (30) days of the entry of this order." 

10.  There is no indication the RSM requested to change SBP election from "spouse and children" to "former spouse" coverage.

11.  On 26 January 20011, by letter to the applicant, an official at the Retired and Annuity Pay, DFAS, informed the applicant, in response to her request for information concerning a deemed election of SBP coverage:

	a.  The law allows a military retiree to elect SBP coverage for a former spouse provided the divorce occurred after retirement and the former spouse, was at one time, a spouse beneficiary under the plan.  The retiree may elect former spouse coverage within one year after the date of the divorce.

	b.  The law also allows a former spouse to deem the election.  A deemed election occurs in situations when a retiree who has agreed in writing to provide annuity coverage if the agreement has been incorporated, ratified, or approved by a court order.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  No election may be deemed that cannot be made by the retiree.

	c.  A request for deemed election must be received from the former spouse within one year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.  

	d.  If an election of former spouse coverage was agreed to or ordered by an earlier court order, then a subsequent order or modification that merely restates the previous provisions and imposes no new obligation on the member does not begin a new one-year period.  A subsequent court order holding a member in contempt of court for failing to fulfill the prior agreement is not the type of court order that can be used to begin a new one-year period to deem an election.  

	e.  Since DFAS did not receive a deemed election request before the end of the one-year window, former spouse coverage could not be implemented. 

12.  On 2 November 2011, also by letter to the applicant, an official at the Retired and Annuity Pay, DFAS, informed the applicant that:

	a.  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 the 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.  A signed election request must be received before action can be taken to establish former spouse election.

	b.  While a service member is limited to filing an SBP election before the date of retirement, the former spouse is not limited as such.  The law does not provide for an election to be deemed on the basis of a court order or a court agreement.  However, a deemed election request may only be filed by the former spouse or the former spouse's attorney, and the request must be received within one year of the date of the original court order which awarded the coverage.  Since the amended court order was issued after the member's retirement date, this court order is not valid and does not entitle her to former spouse SBP.  For the order to have been valid, it would have needed to have been issued prior to the member's date of retirement. 

	c.  The request for former spouse coverage to be deemed to have been made by the retiree was received in excess of the one-year period following the date of the court order awarding the SBP coverage.  Since the statutory filing deadline has expired, an election of former spouse coverage cannot be deemed to have been made and former spouse coverage will not be implemented.

13.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

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

16.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

17.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  

18.  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.

19.  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 evidence of record shows in connection with his retirement in 2006, the RSM elected SPB coverage for spouse and children.  The applicant and the RSM were divorced in June 2008.  

2.  SBP elections are made by category, not by name.  Once the RSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  He did not make a former spouse election within one year of the divorce and she did not deem the election within one year of her divorce.  However, a child does not have a vested interest that defeats his mother's interest.  Children take after spouses unless there is a "child only" election.  

3.  Therefore, given that the RSM agreed in writing and the divorce decree stipulated he would name the applicant as the beneficiary of his SBP and given the fact that there is no evidence the RSM has remarried, it is only appropriate to correct the record to show the applicant deemed the election within one year of her divorce from the RSM.  Therefore, in the interest of justice, it would be equitable to correct the records to show the applicant made a request for a deemed election for former spouse beneficiary in a timely manner.

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 showing the applicant made a request for a deemed election for former spouse beneficiary within 1 year of her divorce to the RSM on 27 June 2008 and that DFAS effected the change.



      _______ _   __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)                                         AR20120006783



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ABCMR Record of Proceedings (cont)                                         AR20120006783



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