IN THE CASE OF:	

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120016999 


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 former service member (FSM), requests correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states:

* she was divorced from the FSM on 23 June 2009 after 29 years of marriage
* the marital settlement directed him to secure the SBP for her
* it appears that he failed to do so
* she believes her status was not changed from spouse to former spouse
* as part of the settlement, she was directed to reimburse the FSM every month for SBP costs
* she has sent him checks in the amount of $94.00 every month since June 2009
* about 4 months ago, he sent her check back to her and indicated it was no longer necessary to send him the check and he offered no explanation
* since it is a part of the divorce settlement she continued to send him the checks
* she called the Army customer service to confirm she was the SBP beneficiary
* she received a phone call from the legal department indicating that the status of the plan was changed and she was no longer entitled to the SBP
* the FSM has not remarried

3.  The applicant provides:

* Judgment for Dissolution of Marriage, dated 23 June 2009
* Marital Settlement Agreement, dated 23 June 2009

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 FSM was born on 22 December 1936.  Having prior enlisted service in the Army National Guard (ARNG), the FSM was commissioned as a second lieutenant in the ARNG on 26 June 1960.

3.  He married the applicant on 9 December 1978.

4.  His record contains a DD Form 2656 (Data for Payment of Retired Personnel), dated 27 June 1996, that shows he elected spouse and children coverage, full amount.  This form shows the applicant was the designated beneficiary for unpaid retired pay.

5.  He was placed on the retired list effective 22 December 1996.

6.  He and the applicant divorced on 23 June 2009.  The marital settlement agreement, dated 23 June 2009, states:

* the applicant shall have the right to the existing SBP under this fund at her sole expense, which is currently $91.37 per month
* the FSM shall submit all documentation necessary to secure said annuity
* the applicant must reimburse the FSM each month for the cost of the annuity, including any increased cost

7.  There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.

8.  The FSM's Defense Finance and Accounting Service (DFAS) record shows:

* there is no SBP beneficiary listed as of 23 June 2009
* there is also no evidence the FSM remarried
* the FSM continued to pay SBP through February 2012, but he received a credit for payments from July 2009 to February 2012 on 23 March 2012

9.  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.  Elections are made by category, not by name.

10.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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

12.  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.

13.  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 applicant’s contentions in regard to changing the FSM's SBP election from spouse to former spouse coverage are acknowledged and determined to have merit.

2.  Evidence shows the FSM elected SBP for spouse and children coverage in 1996.

3.  The FSM and the applicant divorced on 23 June 2009.  In the marital settlement agreement, the FSM agreed the applicant would have the right to the existing SBP at her sole expense and that he would submit all documentation necessary to secure the annuity.  However, there is no evidence that shows he requested to change his SBP election from spouse to former spouse coverage within 1 year of the divorce.

4.  DFAS records show the FSM has not remarried.  Accordingly, it appears no one has a vested interest to that of the applicant.

5.  Given a court of competent jurisdiction awarded SBP coverage to the applicant, it would be equitable to correct the FSM's record to show she made a written request for a deemed election of former spouse coverage within the time frame provided by law.

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 submitted a deemed election request to change the FSM's SBP election from spouse to former spouse coverage on 1 July 2009, and
* showing DFAS timely received and processed the deemed election request



      ____________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)                                         AR20120016999



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ABCMR Record of Proceedings (cont)                                         AR20120016999



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