IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120021274 


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 reconsideration of an earlier request to correct the records of the FSM to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse.

2.  The applicant states:

	a.  She will address the issue that the FSM never applied for his pension in August 2011 when she filed a civil suit against him.  She has been told that since he is in contempt of court, there is a good chance he will be jailed.

	b.  During the 20 years she was married to him she was subjected to countless episodes of emotional abuse.

	c.  They were married on 7 February 1987, not 7 December 1987.

	d.  The FSM has not remarried; no one in their right mind would marry him.

	e.  Their divorce was finalized in September 2007, not March 2007.

	f.  She had to drop her health insurance in April 2011 but she thought with her portion of the FSM's pension she would be able to afford insurance in October 2011.  She has multiple medical problems but she still has not been able to get insurance due to not getting the pension money.



3.  The applicant provides:

* A self-authored notarized letter, dated 9 October 2012
* A self-authored letter, dated 4 February 2013
* emails between herself and the FSM during the period 30 January and
28 June 2013

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 AR20110023390 on 2 August 2012.

2.  The applicant provided a signed, notarized declaration, dated 9 October 2012, affirming the FSM has not remarried.  This is new evidence that was not previously considered by the Board and warrants consideration in this case.

3.  The FSM was born on 24 August 1951.  Having had prior enlisted service in the Regular Army, the FSM enlisted in the New Jersey Army National Guard (NJARNG) on 14 December 1985.  He and the applicant were married on 7 February 1987.

4.  On 3 March 1998, the NJARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible upon application to retired pay at age 60.

5.  There is no indication he completed a DD Form 1883 (SBP - Election Certificate) within 90 days of receipt of his 20-year letter.

6.  On 9 December 2002, the FSM was honorably discharged from the ARNG and he was transferred to the Retired Reserve effective 13 December 2002.

7.  On 7 July 2003, he completed a DD Form 2656-5.  He elected spouse Reserve Component SBP (RCSBP) coverage based on the full amount under Option B (elect a beneficiary to receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday).  His spouse, the applicant, was informed and counseled and she agreed with his election.

8.  He and the applicant divorced in September 2007.  A court order issued by the Superior Court of the State of New York, County of Orange, New York states the applicant "is awarded a former spouse SBP under the SBP of the Uniformed Services Retired Pay Program."

9.  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 the divorce.  

10.  On 13 December 2009, the applicant completed a DD Form 2656-10 wherein she requested a deemed SBP election.  She indicated that she was divorced on 10 September 2007 and the election is pursuant to requirements of a court order. 

11.  The FSM turned 60 on 24 August 2011. 

12.  Per phone conversation between the analyst of record and officials at the U.S. Army Human Resources Command (HRC), Fort Knox, KY, on 28 June 2012, the FSM's records at HRC show he has not applied for retired pay despite having reached age 60 and having been mailed the appropriate documents.

13.  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. 

14.  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.

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

16.  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.

17.  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 coverage in 2003.

3.  The FSM and the applicant divorced in September 2007.  A court order shows the applicant was awarded "a former spouse SBP under the SBP of the Uniformed Services Retired Pay Program."  However, there is no evidence that shows the FSM requested to change his SBP election from spouse to former spouse coverage within 1 year of the divorce.

4.  The applicant was advised that the ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from her affirming the FSM had not remarried.  She provided a signed, notarized statement, dated 9 October 2012, that affirmed the FSM has not remarried.  Accordingly, it appears no one has a superior 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 records to show the applicant 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 the evidence presented is sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2011002390, dated 2 August 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant submitted a deemed election request to change the FSM's SBP election from spouse to former spouse on 1 October 2007 and

	b.  showing her request was timely received and processed by DFAS.



      ___________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)                                         AR20120021274



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021274



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1