IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130008771 


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 the correction of the FSM's records to show he elected Survivor Benefit Plan (SBP) coverage for former spouse.

2.  The applicant states she is the court-ordered designated recipient of her former spouse's SBP but he did not make the election for former spouse when he retired.  She sent in the completed paperwork to the Defense Finance and Accounting Service (DFAS) but it was denied.  DFAS stated the paperwork wasn't filed within 1 year of the date of their divorce.  They were divorced on 3 June 2011 and she applied for the SBP in November 2012.  She is currently receiving a portion of his retirement as community property.

3.  The applicant provides a letter, a community property statement, and a divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 13 October 1992.  He and the applicant were married on 22 December 1994.  They had two children born on 31 March 1999 and 26 October 2000, respectively.  

2.  He served in a variety of positions throughout several reenlistments and/or extensions and he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 October 2007.

3.  The FSM and the applicant were divorced on 3 June 2011.  The applicant provides a divorce decree wherein, in part, it stated:

	a.  The Service Member (SM) and [the applicant] were married on 22 December 1994 and the marriage lasted for 16 years and 6 months or more, during which the SM served 18 years and 7 months or more of creditable service toward retirement.  

	b.  It is ordered that the SM shall apply for retirement as soon as he is eligible and it is administratively feasible.  It is ordered that the SM shall notify the former spouse of his application for retired pay and provide the former spouse with a true copy of his Application for Retired Pay on the date he applies for those benefits.

	c.  The Court further finds that the former spouse should be designated as a former spouse beneficiary of the SM's SBP and the SM is ordered to designate the former spouse as a former spouse beneficiary of the SBP and that the designation should not hereafter be modified.  It is further ordered that pursuant to this order, the former spouse be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of the SM's SBP to receive the highest SBP entitlement allowed by law.

	d.  Both the FSM, his lawyer, and the applicant signed the decree to show they approved and consented to both the form and substance.

4.  On 25 June 2012, in connection with the FSM's upcoming retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was single and he had two dependent children born on 31 March 1999 and 26 October 2000.  He elected SBP coverage for "children only" based on the full amount.  

5.  On 25 June 2012, he also completed an SGLV 8286 (Servicemembers' Group Life Insurance (SGLI) Election and Certificate) wherein he listed his former spouse as the primary beneficiary for 100 percent of his SGLI in the amount of $400,000.

6.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows he retired on 31 October 2012 and he was placed on the Retired List on 1 November 2012 in the rank of SFC.  

7.  The applicant provides a letter, dated 6 March 2013, wherein an official at the Retired and Annuity Pay, DFAS, stated:

	a.  The applicant's attempt to deem an election of SBP former spouse coverage could not be processed because her application was received more than 1 year after the date of the court order she sent. 

	b.  A spouse loses eligibility as a SBP beneficiary upon divorce.  There is no provision that makes former spouse coverage an automatic benefit.  The only means by which the divorced spouse can become an SBP beneficiary is if former spouse coverage is elected by the service member or a deemed election is made on the basis of a court order.

	c.  A court order by itself cannot be used to institute coverage.  An election can be deemed on the basis of a court order or court-approved agreement by the former spouse or the former spouse's attorney.  The request must be received within 1 year of the date of the original court order which awarded the coverage.

8.  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.  

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

10.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

11.  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.

12.  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 requests the correction of the FSM's records to show he elected SBP coverage for "former spouse."

2.  The applicant and the FSM were divorced on 3 June 2011.  The evidence of record confirms the FSM agreed in writing, and the divorce decree stipulated, that he would name the applicant, his former spouse, as the beneficiary of his SBP at the time of his retirement.  However, in violation of the court order he failed to do so and instead he elected SBP coverage for "children only."

3.  The FSM retired on 31 October 2012 and in November 2012 the applicant requested DFAS correct his records to show he elected former spouse coverage at the time of his retirement.  However, DFAS would not process her request as it was received more than 1 year after the date of the divorce decree.

4.  The applicant should not be punished because the FSM failed to comply with a court order.  It appears the FSM  has not remarried.  Therefore, it would be appropriate grant the applicant relief and show she deemed the "former spouse" SBP election 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 the SBP within 1 year of her divorce from the FSM and DFAS timely received and accepted her request for a deemed election


* auditing the FSM's account and collecting any outstanding SBP premiums due as a result of this correction



      _______ _   _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)                                         AR20130008771





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ABCMR Record of Proceedings (cont)                                         AR20130008771



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