IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130008085 


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 correction of his records to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states he was unaware of the requirement to change his SBP category within 1 year of his divorce from his former spouse.

   a.  He states that he served in the U.S. Army Reserve (USAR) for more than 28 years and transferred to the Retired Reserve in June 1997.  At the time he was married; however, he and his spouse (Kathy R.) agreed to use the same lawyer to represent the both of them in the divorce action.

   b.  He moved from Iowa to Texas and they divorced in August 1997.  The divorce decree was mailed to him.  It included language that they had been married for more than 10 years to ensure she could receive benefits.  He assumed everything was as it should be and that he was doing everything he was supposed to do.

   c.  He states, "Every time I remarried and divorced I thought I informed DFAS [Defense Finance and Accounting Service]."  He adds that if he, his former spouse, and her lawyer had known that they had 1 year after the court order to contact DFAS they would have done so.  However, all of them were ignorant of this requirement.

   d.  He states his SBP needs to be corrected to show his (first) former spouse as his SBP beneficiary.  He adds that he can't afford to travel to Iowa, retain a lawyer, and explain why he should not be held in contempt of the court order.  In addition, he can't afford to purchase a $200,000 life insurance policy and designate his former spouse as the beneficiary.

3.  The applicant provides copies of:

* a DFAS letter
* his former spouse's request for change to SBP election with enclosures
* their certificate of marriage

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in January 1951.  He had prior enlisted service in the Army National Guard of the United States (ARNGUS) and the USAR from 
13 December 1969 through 26 June 1976.

2.  He was appointed as a Reserve officer in the ARNGUS, in the rank of second lieutenant, on 27 June 1976.  He transferred to the USAR on 20 April 1984.

3.  A State of Iowa, Certificate of Marriage, shows the applicant and Kathy R. 
K--------- were married on 8 August 1987.

4.  On 21 July 1990, the Chief, Retired Activities, USAR Personnel Center, 
St. Louis, MO, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.

5.  A DD Form 1883 (SBP Election Certificate) shows the applicant indicated he was married to Kathy R. on 8 August 1987 and he had three dependent children.  He elected spouse only coverage based on the full amount of retired pay with Reserve Component (RC) SBP Option C (Immediate Coverage).  The form also shows the applicant, his spouse, and a witness placed their signatures on the document on 29 September 1990.

6.  He was promoted to lieutenant colonel (LTC)/pay grade O-5 on 29 September 1995.

7.  The applicant was assigned to the USAR Control Group (Retired Reserve) effective 19 June 1997.

8.  An Iowa District Court for Polk County, Decree of Dissolution of Marriage, shows that Kathy R. and the applicant were divorced on 21 August 1997.  It shows, in pertinent part, that Kathy R. shall receive one-third of the applicant's military pension and that the applicant was directed to maintain the provision guaranteeing that the former spouse has survivor benefits and will continue to receive her portion of the pension, if the applicant dies before the former spouse. It also shows that the applicant was to fully cooperate in the filing of a Qualified Domestic Relations Order which includes a provision for the survivor benefits for the former spouse.

9.  A State of Texas, Marriage License and Rites of Matrimony, shows the applicant and Bonnie B. E------ were married on 30 January 1999.

10.  A District Court of Cameron County, Texas, Final Decree of Divorce (pages 1 and 10, only), show the applicant and Bonnie B. E------ were divorced on 
11 February 2002.

11.  A State of Texas, Marriage License and Rites of Matrimony, shows the applicant and Rosario S------ were married on 28 December 2002.

12.  A DD Form 2656-2 (SBP Election Change Certificate) shows the applicant indicated he was requesting a change in SBP coverage based on remarriage.
He indicated his current coverage was spouse only.  He did not enter information pertaining to his spouse, but indicated that he had three dependent step-children. He requested resumption of his existing coverage based on a reduced amount (20%) of his retired pay.  The DD Form 2656-6 also shows the applicant and a notary public who "witnessed" the applicant's signature placed their signatures on the document on 22 March and 31 March 2004, respectively.

13.  On 10 December 2007, in the Iowa District Court for Polk County, a Nunc Pro Tunc Order was issued to add the following language to the Decree of Dissolution of Marriage filed on 21 August 1997, "that the parties were married for 10 years of [sic] more while the member performed 10 years of [sic] more of military service creditable for retirement purposes.  The Petitioner, who is the former spouse, is awarded 33.33 percent of the member's disposable military retired pay.  The Respondent is hereby required to elect the SBP and name the Petitioner as his former spouse beneficiary to ensure that the Petitioner will continue to receive her portion of the pension if the Respondent dies before the Petitioner."

14.  A DD Form 2656 (Data for Payment of Retired Personnel) shows the applicant submitted a request electing not to participate in the SBP because he did not have eligible dependents under the plan.  The form lists an insurable interest beneficiary named Maria L. V---------.  She appears to have written "common-law wife" in the relationship block.  It appears the applicant wrote the words "business associate" above the entry.  The DD Form 2656 also shows the applicant and a witness, Veronica P------ (who also acted as the notary public), placed their signatures on the document on 22 July 2009.  Section XII (SBP Spouse Concurrence), item 32 (Spouse), does not contain a signature; however, the section shows the notary public completed the section as the notary witness.

15.  U.S. Army Human Resources Command, St. Louis, MO, Orders 
P11-930692, dated 30 November 2010, placed the applicant on the retired list, in the retired grade of LTC (O-5), effective 15 January 2011.

16.  In support of his application, the applicant provides the following documents:

   a.  DFAS letter, dated 10 October 2012, that notified the applicant his SBP request could not be processed because of missing information pertaining to his spouse and that his attempt to elect former spouse coverage was received more than 1 year after the court order.

	b.  An Application for Correction of Military Records, dated 14 June 2012, submitted by his (first) former spouse, that includes two letters from her attorney, a copy of the Decree of Dissolution of Marriage and the Nunc Pro Tunc Order, and a DFAS letter.

    	(1)  The former spouse indicated that the applicant removed her as his SBP beneficiary in 2011, in violation of the divorce decree, and she requested reinstatement as his SBP beneficiary.

    	(2)  Three letters from her attorney, dated 30 June 2011 (to DFAS SBP); 11 April 2012 (to the Retirement Services Officer, Fort McCoy, WI); and 29 May 2012 (to this Board), that explain the former spouse's entitlement to the applicant's SBP based on the divorce decree, that the applicant changed his SBP shortly before he began receiving his retired pay despite the court order, and that the U.S. Army had a duty to deny his request to change his SBP beneficiary.
   
    	(a)  She states that a Nunc Pro Tunc Order was issued on 10 December 2007 ordering the applicant to maintain his (first) former spouse as the SBP beneficiary.  She also states that a certified copy of both the Decree of Dissolution of Marriage and Nunc Pro Tunc Order were submitted to DFAS in December 2007.
   
    	(b)  When the applicant turned 60 years of age, the former spouse contacted DFAS to verify her SBP status and learned that she was not the designated beneficiary.  The attorney requested correction of the applicant's records to show the former spouse as his SBP beneficiary.

    	(c)  In response to the letters to the RSO and DFAS, the attorney was advised that former spouse coverage will not be implemented because the request was received in excess of the 1 year period following the date of the court order awarding the SBP coverage to the former spouse.  She was also advised that the former spouse could apply to the Army Board for Correction of Military Records.

17.  In connection with the processing of this case, the General Processing Branch, DFAS, Cleveland, Ohio, was asked to verify information relevant to the applicant's SBP election, coverage, and participation.

   a.  The DFAS official indicated the applicant is currently listed as having SBP spouse coverage for Rosario H-------, effective 15 January 2011; however, DFAS does not have anything documenting the change to "the current spouse."

   b.  A copy of a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) that DFAS has on file that was completed by the applicant and his (first) former spouse was also provided.  It shows in Section III (Certifications - Retired and Retiring Members and Former Spouses) that the applicant's signature was witnessed by Maria L. V--------- on 24 July 2012 and the former spouse's signature was witnessed by her attorney on 14 August 2012.

18.  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.

19.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age
60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

20.  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.  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:


	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  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.

21.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the 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.  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 decree of divorce.  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 of filing involved.

22.  Title 10, U.S. Code, section 1450 (Payment of annuity:  beneficiaries), states a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the plan, as follows:  to the eligible surviving spouse or eligible former spouse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he changed his SBP election from spouse to former spouse coverage because he and his former spouse unwittingly failed to comply with the requirement to notify DFAS within 1 year of their divorce.

2.  The evidence of record shows that, upon receipt of his 20-Year Letter in 1990, the applicant elected full immediate spouse coverage under the RCSBP.

3.  On 21 August 1997, the applicant and his spouse divorced.  He was directed to maintain SBP for his former spouse and to cooperate in the filing of a Qualified Domestic Relations Order providing for SBP benefits for his former spouse.  However, there is no evidence of record that shows the applicant complied with the court-ordered directive.

4.  The applicant married Bonnie B. E------ on 30 January 1999 and they divorced on 11 February 2002.  There is no evidence of record of a court order pertaining to the applicant's SBP coverage with respect to this marriage.

5.  The applicant married Rosario S------ on 28 December 2002.

6.  In March 2004, he submitted a request to DFAS to change his SBP coverage based on remarriage.  He indicated his current coverage was spouse only and he requested resumption of his existing coverage based on a reduced amount of his retired pay.

7.  On 10 December 2007, a Nunc Pro Tunc Order (retroactive legal action) was issued by the Iowa District Court for Polk County ordering the applicant to change his SBP to former spouse coverage with his first former spouse named as the beneficiary and to maintain such SBP coverage.

8.  On 22 July 2009, the applicant submitted a request to DFAS electing not to participate in the SBP because he did not have eligible dependents under the plan.  However, there is no evidence of record that shows the applicant divorced Rosario S------.

9.  On 15 January 2011, the applicant was placed on the retired list based on his having reached age 60.  DFAS records show the applicant currently has SBP spouse coverage.  The spouse currently listed is Rosario H------.

10.  There is no evidence that the applicant or his first former spouse notified DFAS to change the applicant's RCSBP coverage from spouse to former spouse coverage within 1 year of the divorce decree.

11.  On 30 June 2011, the (first) former spouse's attorney indicated to DFAS that a copy of both the Decree of Dissolution of Marriage and Nunc Pro Tunc Order were submitted to DFAS in December 2007.  However, there is insufficient evidence to support the former spouse's attorney's contention.  Further, December 2007 was still beyond the 1-year date of the divorce decree which ordered former spouse coverage.

12.  It is recognized that the divorce decree awarded the RCSBP to the first former spouse and specifically ordered the applicant to timely execute all documents necessary to maintain his (first) former spouse's designation as a (former spouse) SBP beneficiary.  Unfortunately, it appears the applicant did not take the action directed by the court, nor did the former spouse make a request for a "deemed election" of the SBP, in a timely manner.

13.  Since the applicant's retired pay account reflects spouse SBP coverage, Rosario H------- is the lawful beneficiary of his SBP, unless they are divorced. The Board will not take any action to prevent the lawful beneficiary from receiving those benefits, in the event of the applicant's death.  To do so would constitute an unconstitutional taking without due process of law.

14.  If the applicant provides evidence to show his marriage to Rosario H------- was dissolved, the Board may reconsider the case based on the state of the file as it stands.  If applicant is still married to Rosario H------- or he has another current spouse, the spouse must either voluntarily relinquish her SBP interest by providing a notarized statement to that effect or the matter must be resolved in a court of competent jurisdiction.

15.  Regrettably, based on the available evidence of record, there is insufficient evidence that would warrant granting the relief requested.

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 for correction of the records of the individual concerned.




      _______ _  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)                                         AR20130008085



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ABCMR Record of Proceedings (cont)                                         AR20130008085



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