IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120011259 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* reconsideration of the applicant's previous application to correct the records of her former husband, a former service member (FSM), to show she made a deemed Survivor Benefit Plan (SBP) election within a year of their divorce
* a personal appearance hearing

2.  Counsel states:

* since the Board's decision, his client has discovered evidence which supports her assertion that she submitted the proper documentation well before the deadline for submission of a deemed election
* a pay statement shows the applicant's SBP benefits were terminated in October 1989, which coincides with the U.S. Army Finance and Accounting Center (USAFAC) correspondence acknowledging receipt of her court order and supporting documents
* the Second Decree contained no provision concerning SBP benefits for the applicant as the "former spouse"
* there is no other documentation that would be submitted by a former spouse in support of a court order of divorce other than a written request for a deemed election of SBP benefits
*	it would make no sense for the applicant to submit any other documentation or for the USAFAC to acknowledge receipt of such documentation if it were not true
* the applicant's position in this matter is supported by the U.S. Court of Federal Claims 2001 decision in Livengood v. U.S., Number 00-227C, copy enclosed

*	the divorce degree terminating the marriage was issued on 11 June 1992
*	on 22 June 1992, an amendment was issued ordering Mr. Lxxxxxxxx to keep Mrs. Lxxxxxxxx as SBP beneficiary
*	according to the Claims Court, the divorce became final on 22 June 1992, when a Kentucky court issued an amended decree

* the USAFAC's termination of SBP benefits calls into question its acceptance of the Original Decree
* alternatively, the Final Decree Nunc Pro Tunc was effective in establishing SBP benefits
* despite the Board's improper assertion, nowhere in Title 10, U.S. Code, section 1448 or section 1450 does the law state that a deemed election for SBP benefits is valid if the written request is received within one year of the court order that awards SBP benefits for the first time

*	Title 10, U.S. Code, section 1450(f)(3)(A)(ii)(II) states a deemed election is made if the Secretary receives a copy of the court order, regular on its face, which requests such an election or incorporates, ratifies, or approves the written agreement of such person
*	Title 10, U.S. Code, section 1450(f)(3)(C) states that an election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary receives a request from the former spouse of the person within one year of the date of the court order involved
*	in no manner do they require these benefits to be based upon the first court order that establishes SBP benefits

* the Board's erroneous understanding of these requirements resulted in unfair prejudice to the applicant


* according to Title 10, U.S. Code, section 1450, the applicant's submission of a written request for a deemed election on 27 June 1994 satisfied the requirements for a deemed election of SBP benefits, due to the issuance of the Final Decree on 26 January 1994
* the Final Decree established the applicant's right to SBP benefits, which had been terminated by the Second Decree
* according to the pay statement, the USAFAC continued to deduct SBP payments from the applicant's monetary benefits after the issuance of the Original Decree, thereby leaving her benefit in place
* the USAFAC allowed the Second Decree to superseded the Original Decree and terminated her SBP benefits in October 1989
* according to the Board:

*	the Original Decree was accepted for the purpose of establishing the applicant's SBP benefits
*	the Second Decree was also accepted for termination of SBP benefits as evidenced by the pay statement
*	the Final Decree established the applicant's SBP benefits, which had been previously terminated

* Title 10, U.S. Code, section 1450 does not require the court order that establishes SBP benefits to be the "first" court order to do so
*	the applicant does not assert, nor would equity hold, that a new court order could be issued in order to begin a new one-year period, anytime a beneficiary allowed the one-year period for submission of a written request for deemed election to expire
*	the applicant asserts that she was never given the full one year period under the Original Decree before her SBP benefits were terminated
*	when her SBP benefits were correctly established by the Final Decree, she submitted her written request for a deemed election well within the time required by Title 10, U.S. Code, section 1450(f)(3)(C)
*	even if the two timeframes were aggregated, the applicant submitted her written request within one year of the establishment of her SBP benefit by the Original Decree, while that benefit was effective and existing

3.  Counsel provides:

* Counsel's Brief
* previous Counsel's Brief, dated 31 August 2010
* applicant's 19 May 1989 and 17 August 1989 divorce decrees


* applicant's 4 March 1993 Order on Motion for Clarification of Prior Order
* applicant's 26 January 1994 Final Decree Nunc Pro Tunc
* two letters, applicant and counsel, to the USAFAC, dated 27 June 1994
* a Defense Finance and Accounting Service (DFAS), Indianapolis, IN, letter, dated 23 September 1994
* counsel's letter to DFAS, dated 6 October 1994
* DFAS letter, Office of the General Counsel, dated 18 October 1994
* General Accounting Office (GAO) letter, dated 12 January 1995, with one enclosure
* GAO letter, dated 24 January 1995, with one enclosure
* GAO letter, dated 2 November 2009
* DFAS letter, dated 21 January 2010
* Applicant's previous application
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20100023192, dated 10 May 2011, with cover letter
* USAFAC letter, dated 30 October 1989
* extract, FSM's Army Retired/Annuitant Pay Statement
* U.S. Court of Federal Claims Case, Livengood v. U.S.
* Army Review Boards Agency Acknowledgement letter, dated 4 June 2012

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 AR20100023192, on 10 May 2011.

2.  Counsel provides new arguments and new evidence, in the form of a letter dated 30 October 1989 from the USAFAC and an extract of the FSM's Retired/Annuitant Pay Statement, which were not previously considered by the Board and warrants consideration at this time.

3.  On 31 July 1972, the FSM was honorably retired and placed on the Retired List on 1 August 1972.

4.  On 1 June 1973, he elected SBP spouse coverage.

5.  On 19 May 1989, the applicant and the FSM were divorced.  It was stipulated in the divorce decree that the applicant be given all of her former husband's retirement annuity and that he maintain her as the maximum beneficiary on his life insurance policy and SBP.

6.  On 17 August 1989, a second divorce decree was issued which stipulated that the applicant receive 50 percent of her former husband's gross monthly military retirement annuity.  SBP was not mentioned in this divorce decree.

7.  On 30 October 1989, the USAFAC responded to the applicant's request for direct payments for division of property from the U.S. Army retired pay of the FSM.  The response states, "Please be advised that the court order will be honored by the U.S. Army.  It is estimated that payments in the amount of $325.21 will begin on or about 1 December 1989."

8.  An October 1989 copy of the FSM's Retired/Annuitant Pay Statement shows SBP cost for spouse coverage was suspended.

9.  On 4 March 1993, an Order on Motion for Clarification of Prior Order was published.  The SBP was not mentioned in this order.

10.  On 26 January 1994, a Final Decree Nunc Pro Tunc was published which stated ". . . the Court having considered the pleadings, evidence and argument of counsel, and after due consideration and examination thereof, finds the Decree of Divorce of August 17, 1989, and subsequent clarification thereof entered March 4, 1993, contain a clerical error whereby occurred the omission of the award of SBP to [the applicant]."  This court order directs the applicant's former husband to submit documents naming the applicant as his SBP beneficiary.

11.  On 27 June 1994, the applicant's former counsel submitted a deemed election for her former husband's SBP.  The applicant's former counsel stated that the deemed election was being made within a year of the Final Decree Nunc Pro Tunc.

12.  On 23 September 1994, the Senior Associate Counsel, General Law Division, DFAS responded to the applicant's former counsel stating that:

A review of the applicant's former husband's records show a Decree of Divorce dated 19 May 1989.  In that decree [the applicant's former husband] was to maintain [the applicant] as "maximum beneficiary of the…SBP."  It appears that [the applicant's former husband] failed or refused to make a voluntary former spouse SBP election on [the applicant's] behalf within 1 year from the date of the divorce, or before May 18, 1990, in accordance with 10 U.S.C. §1450(f)(3).  The Final Decree Nunc Pro Tunc which you enclosed with your letter reiterates the earlier order of May 19, 1989, that [the applicant] be maintained as SBP 


beneficiary.  The Comptroller General held, in 70 Comp. Gen. -- (1992) 
(B-244101, August 3, 1992), that an order that merely reiterates an earlier order that SBP be elected for a former spouse does not qualify as a modifying court order under the SBP statute for purposes of beginning a new 1 year period for requesting a deemed election.  In view of the Comptroller General's decision, we cannot use the Final Decree Nunc Pro Tunc as the basis for a deemed election for former spouse SBP coverage on behalf of [the applicant].

13.  On 6 October 1994, the applicant's former counsel wrote DFAS to point out that "it would have been impossible for the applicant to obtain her benefits within a year after the entry of the decree of Divorce, to wit:  August 17, 1989, since the Decree erroneously dropped the SBP benefits awarded to [the applicant] at that time and no action was taken by [the applicant] with the Military or Retired Pay Division, since the Decree did not award SBP benefits.  Once the Decree was corrected, she had evidence of her entitlement and it was forwarded to your office."

14.  On 18 October 1994, DFAS responded to the applicant by stating "Please be advised that I have checked our files, and I find that you did indeed submit a copy of your original Decree of Divorce dated May 19, 1989.  As you well know, however, that decree was not acceptable for purposes of the division of your former husband's retired pay."

15.  On 12 January 1995, the Senior Adjudicator, GAO, disallowed her claim for SBP.  The GAO chronicled the events in the case and quoted the applicable laws governing a deemed election of SBP.  The GAO stated:

Our Office has considered the situation of a court order concerning a former spouse coverage that is issued after the initial order.  The later order created a new one-year period for an election or deemed election request if it created the substantive obligation for the member to elect former spouse coverage.  See B-247508, September 2, 1992, copy enclosed.  If the later order merely reiterates a previous order, then a new one-year period is not created.  See B-248017, September 16, 1992, and 71 Comp. Gen. 475 (1992), copies enclosed.

16.  On 24 January 1995, the Senior Adjudicator, GAO, advised the applicant of Title 4 Code of Federal Regulation (CFR), part 32.2, regarding review and reconsideration of a claim settlement.  The GAO stated:


   While the documents you submitted suggest irregularities concerning
your divorce from [the FSM], they do not disturb our settlement.  Legal questions concerning the validity of a divorce are to be resolved by a court
of competent jurisdiction, not our office.  See B-240878, December 10,
1990, copy enclosed.  Therefore, our settlement remains unchanged.  We
are closing our file on your claim without further action.  We will review and reconsider your claim if and when we receive a request that complies with
4 CFR, 32.2.

17.  On 2 November 2009, the Office of General Counsel, GAO, responded to a 20 October 2009 letter in which the applicant's daughter requested assistance or recommendations on how her mother could be designated an SBP beneficiary.  The response was as follows:

   a.  Due to changes made to the law in 1996, this office no longer settles SBP claims.  The authority to settle these claims now rests with the Department of Defense (DOD).   DOD has delegated this authority to the Defense Office of Hearings and Appeals (DOHA).  DOHA informally advised us that, given the unusual circumstances of her case, your mother should first verify the applicable Army procedures by contacting the Office of the Deputy Chief of Staff, G-1, and next, your mother must submit her request for reconsideration of her claim for a SBP annuity to DFAS.

   b.  In addition, informational websites about obtaining benefits under SBP were included in the response.

18.  On 21 January 2010, DFAS responded to the applicant by stating:

…a court order by itself cannot be used to institute coverage.  A signed election request must be received before we can take action to establish former spouse coverage.  While the service member is limited to filing an SBP election before his date of retirement, the former spouse is not limited as such.  The law does provide for an election to be deemed on the basis of a court order or court-approved 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 member’s retirement date, this order is not valid and does not entitle you to Former Spouse SBP.  For order to have been valid, it would have needed to have been issued prior to the member's date of retirement.  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.

19.  Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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 or as part of a proceeding of divorce.

20.  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.

21.  Title 10, U.S. Code, section 1448(a)(6) provides that a person with spouse coverage who remarries may elect not to provide coverage under the SBP for the person’s spouse if such an election is made within one year after the person’s remarriage.  The person’s spouse shall be notified of that election.  If such an election is not made, the spouse automatically becomes the SBP beneficiary one year from date of marriage.

22.  In a conversation between DFAS and the Board's staff it was determined the FSM remarried and he did not elect to exclude his current spouse from SBP coverage.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for reconsideration of the applicant's previously denied application requesting correction of her former husband's records to show she made a deemed SBP election within one year of their divorce was carefully considered.

2.  Counsel argues a deemed election was made within the proper time frame based on the 30 October 1989 USAFAC letter and Army Retired/Annuitant Pay Statement.  However, the 30 October 1989 letter only acknowledges and addresses the applicant's entitlement to the FSM's retired pay, not SBP.  Further, the Army Retired/Annuitant Pay Statement correctly shows suspension of SBP costs for spouse coverage.  Receipt of the divorce decree notified USAFAC that the FSM no longer had a spouse but rather a former spouse.

3.  It is noted she submitted "supporting documents" when she submitted the original divorce decree; however, these documents are unavailable and the applicant admits she did not keep a copy.  There is no way to identify what the documents were.  Since the 30 October 1989 letter does not address the SBP, it is presumed she did not make a deemed election nor did the FSM.

4.  Notwithstanding any analysis of case law and no matter the timeline of events and orders surrounding the applicant's divorce from the FSM, a court of competent jurisdiction did award the applicant the SBP, in the divorce decree dated 19 May1989.  However, the issue with respect to the timeliness and effectiveness of any attempted former spouse deemed election is overcome by the remarriage of the applicant's former spouse and the vesting of an SBP spouse interest one year after that marriage.  Under the facts of this case, the Board will not divest the current spouse of her interest.  The applicant is again advised that her potential remedy lies in a civil action which includes the current spouse as a party.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100023192, dated 10 May 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)                                         AR20120011259



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ABCMR Record of Proceedings (cont)                                         AR20120011259



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