IN THE CASE OF:	  

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130011766 


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 deceased former service member (FSM), requests correction of her former husband's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with former spouse coverage.

2.  The applicant states she married the FSM on 27 June 1987.  He joined the Army National Guard (ARNG) on 30 September 1988 and she remained married to him for more than 90 percent of his military career.

	a.  They divorced on 18 December 2009.  The divorce judgment states the FSM "shall cooperate in ensuring the Wife's entitlement to any portion of pay and benefits…under the [Uniformed Services] Former Spouses' Protection Act [USFSPA] and other applicable law."

	b.  The divorce judgment incorporated their mediation agreement, dated 5 September 2008, that states, "In order to secure Wife's interest in Husband's military retirement, Husband shall elect to provide SBP coverage with Wife as the former spouse beneficiary at the maximum amount allowed."

	c.  On 30 October 2008, a notification of eligibility for receipt of retired pay at age 60 was issued to the FSM that required him to submit a DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election) within 90 days.

	d.  The FSM died on 12 January 2012.  The applicant contacted the Defense Finance and Accounting Service (DFAS) to determine the status of the FSM's SBP.  She was informed that the FSM never submitted an RCSBP election form.  As a result, his RCSBP coverage had defaulted to spouse with child coverage.

	e.  She learned the FSM did not request a change to his RCSBP coverage to former spouse within 1 year of their divorce and she acknowledges she failed to submit a "deemed election" within the 1-year period.

3.  Applicant provides no documentary evidence; documentary evidence is provided by her counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM's records to show he enrolled in the RCSBP with former spouse coverage.

2.  Counsel states the court in Hillsborough County, FL, ordered the FSM to maintain RCSBP coverage for the applicant by incorporating their September 2008 mediation agreement into the divorce agreement in a divorce judgment in December 2009.  However, the FSM did not comply with the court order.

	a.  The FSM failed to submit a DD Form 2656-5, so his RCSBP coverage defaulted to spouse and child coverage based on full retired pay because he was still married to the applicant at that time.

	b.  The FSM died on 12 January 2012.

	c.  The U.S. Army Human Resources Command (HRC) determined the FSM failed to make a timely election of former spouse coverage and the applicant failed to make a timely deemed election for RCSBP coverage.  As a result, the applicant was denied the SBP annuity.

	d.  On 28 December 2009, the applicant's prior attorney sent DFAS a certified copy of the military pension division order that was incorporated into the divorce judgment on 18 December 2009.  This was a "good faith" effort to notify the government of the applicant's entitlement to the FSM's RCSBP.

	e.  The attorney did not submit a DD Form 2656-10 (SBP/RCSBP Request for Deemed Election).  However, the June 2008 edition of the Department of Defense Financial Management Regulation (DODFMR) 7000.14-R, in effect at the time of their divorce, made no mention of a DD Form 2656-10.  That requirement was established in the December 2010 edition.

	f.  On 19 January 2012, the applicant submitted a DD Form 2656-7 (Verification for Survivor Annuity).  On 15 March 2012, HRC notified her that her application for SBP was denied.

	g.  On 10 May 2012, the applicant's prior attorney requested reconsideration of her case and provided copies of documents he previously submitted to DFAS.

	h.  On 25 June 2012, HRC responded that no deemed election had been made and, therefore, the applicant was not eligible to receive the FSM's SBP.

	i.  The applicant submitted a copy of the court order and related documents to DFAS in compliance with SBP regulations.  In addition, she made several attempts to get the government to reconsider the previous denial.

	j.  Counsel asserts the FSM did not remarry prior to his death; thus, there is no spouse or widow eligible to receive his SBP.  He adds the applicant and FSM had one child (E____ C. C____, born 27 February 1993), she is under age 22, and currently a full-time student.  However, as a potential eligible (child) beneficiary, she consents to the applicant's petition to establish former spouse SBP coverage.

	k.  Counsel offers several U.S. Court of Federal Claims (Fed. Cl.) cases that addressed the issue of an insufficient deemed election submission.

		(1)  In Woll versus United States, 41 Fed. Cl. 371, dated 1998, the court upheld the Army's denial of former spouse SBP benefits.  The essential issue:  the FSM requested cancellation of his SBP prior to his death.

		(2)  In Holt versus United States, 64 Fed. Cl. 215, dated 2005, the court held that submission of the court order that contained the SBP terms, the former spouse's letter to DFAS requesting "alimony" due her, and an internal memorandum (written by a DFAS paralegal) forwarding the documents to the appropriate section in DFAS were sufficient to constitute a written request for SBP coverage.  (The applicant's counsel notes the court was silent on the use/submission of the actual form in effect at the time and opines that the submissions by the applicant and her previous attorney represent a timely deemed election submission.)

		(3)  In Holmes versus United States, 98 Fed. Cl. 767, dated 2011, the court upheld the denial by the Board for Correction of Naval Records (BCNR) of the former spouse's request for SBP benefits.  The essential issue:  neither party complied with the former spouse election procedures in any way and the FSM had remarried.  (The BCNR acknowledged that it had a policy of not granting relief to the former spouse when such action would prejudice another party.)

	l.  Counsel concludes the actions taken by the applicant and her attorney have substantially complied with the RCSBP regulations.

3.  Counsel provides copies of the following documents:

* FSM's Chronological Statement of Retirement Points
* FSM's Death Certificate
* Final Judgment of Dissolution of Marriage
* Mediation Agreement
* 20-year letter
* email messages, dated March 2013
* Military Pension Division Order
* former attorney's letter to DFAS, dated 28 December 2009
* extract of DODFMR 7000.14-R
* HRC letter, dated 19 January 2012
* applicant's Application for Survivor Annuity, dated 30 January 2012
* HRC letter, dated 15 March 2012
* former attorney's letter, dated 10 May 2012
* applicant's letter, dated 8 June 2012
* email message, dated 25 June 2012
* FSM's daughter's Consent for Petition, dated 11 June 2013
* FSM's daughter's Consent for Petition, dated 28 March 2014
* extract of Title 10, U.S. Code, section 1450

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in February 1960.

2.  He had prior enlisted service in the U.S. Air Force from 26 June 1978 through 26 July 1979 and a break in service from 27 July 1979 through 29 September 1988.

3.  A New Jersey State Department of Health Certificate of Marriage shows the FSM and applicant were married on 27 June 1987.

4.  The FSM enlisted in Army National Guard of the United States (ARNGUS) on 30 September 1988.  He was appointed as a Reserve officer in the ARNGUS in the rank of second lieutenant on 16 June 1990.

5.  The FSM transferred to the U.S. Army Reserve (USAR) on 30 September 2000.

6.  On 30 October 2008, the Deputy Director, Personnel Actions and Services, HRC, notified the FSM in the form of a 20-year letter that his eligibility for retired pay had been established upon attaining age 60.

	a.  He was also notified of his entitlement to participate in the RCSBP established by Public Law 95-397.  The memorandum states, in part, "Note:  Public Law 106-398, 30 October 2000, requires that upon receipt of this letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided to allow one of the following (other) elections."

	b.  He was instructed to notify HRC of his decision within 90 days of the date of the letter by using a DD Form 2656-5 or DD Form 1883.

7.  The applicant was assigned to the USAR Control Group (Reinforcement) effective 9 November 2010.

8.  He was promoted to lieutenant colonel/O-5 on 15 December 2010.  He died on 12 January 2012.

9.  A review of the FSM's records failed to reveal any evidence that he submitted an application for RCSBP coverage or that he requested a change in the RCSBP coverage he was automatically enrolled in from spouse and child(ren) coverage to former spouse and child(ren) coverage.

10.  The applicant and her counsel provided copies of the following documents:

	a.  A State of Florida Office of Vital Statistics Certificate of Death shows the FSM died on 12 January 2012, he was divorced (no surviving spouse), and E____ C____ (daughter) was listed as the informant of the FSM's death.

	b.  A Circuit Court of the 13th Judicial Circuit of the State of Florida, in and for Hillsborough County, Family Law Division Final Judgment of Dissolution of Marriage shows the FSM and the applicant were divorced on 18 December 2009; there was one minor child of the marriage (E____ C____), and they had reached a mediation agreement on 5 September 2008 which was incorporated as part of the final judgment of dissolution of marriage.  It also shows the applicant was granted entitlement to a portion of the FSM's monthly net military retired pay at the earliest age he became eligible to receive any pension.  It further instructed, "The Husband [FSM] shall cooperate in ensuring the Wife's [applicant's] entitlement to any portion of pay and benefits…under the Former Spouses' Protection Act and other applicable law."

	c.  A Circuit Court of the 13th Judicial Circuit, in and for Hillsborough County, Florida, Family Division Mediation Agreement, dated 5 September 2008, shows the FSM and the applicant agreed to specific mutual covenants and obligations stipulated in the document.  It specifies, in part, "In order to secure Wife's interest in Husband's military retirement, Husband shall elect to provide SBP coverage with Wife as the former spouse beneficiary at the maximum amount allowed."

	d.  Email messages, dated 6 and 12 March 2013, subject:  SBP Issue, show an exchange between the applicant's counsel and DFAS.  The DFAS official advised, "Based on the information that we have in our system, [FSM] never returned his DD Form 2656-5, so he would have received automatic coverage."

	e.  A Circuit Court of the 13th Judicial Circuit of the State of Florida, in and for Hillsborough County, Family Law Division Military Pension Division Order, dated 18 December 2009, sets forth the court's findings with respect to the FSM's military retired pay.  It does not address the FSM's SBP.

	f.  A letter from the applicant's former attorney to DFAS, dated 18 December 2009, forwarded copies of the final judgment of dissolution of marriage and military pension division order.  It also shows the entry "Certified" and a date-stamp of "28 December 2009."

	g.  A letter from HRC Reserve Components Retirements to the applicant, dated 19 January 2012, provided information and forms necessary for the submission of an SBP claim.

	h.  The applicant's DD Form 2656-7, dated 30 January 2012, with enclosures, shows the applicant requested payment of the FSM's SBP benefit based on former spouse status.

	i.  A letter from HRC Retired Pay Branch to the applicant, dated 15 March 2012, informed her that neither she nor the FSM had notified HRC to change the FSM's SBP category from spouse to former spouse within 1 year of their divorce.  She was also informed she is not eligible to receive SBP based on the FSM's military service since neither one of the procedures were completed.

	j.  A letter from the applicant's former attorney to the Chief, Retired Pay Branch, HRC, dated 10 May 2012, forwarded copies of relevant divorce documents along with a copy of his previous letter, dated 28 December 2009.
	k.  The applicant's inquiry to the HRC Retired Pay Branch, dated 8 June 2012, and an email message to the applicant, dated 25 June 2012, advised her there was no documentation showing the FSM notified HRC to change his SBP category to former spouse or that she submitted a deemed election for SBP within 1 year of their divorce.  Therefore, she is not eligible to receive survivor benefits.

	l.  A consent for petition to the Army Board for Corrections of Military Records (ABCMR) signed by E____ C. C____ and notarized on 11 June 2013, shows she consented to the terms of the application to correct the FSM's records "to effectuate former spouse SBP coverage for her [mother M____ C. C____] even though I am under the age of 22, a full-time student at the University of Florida, and possibly an eligible child beneficiary of [FSM's] RCSBP."  A second consent for petition to the ABCMR signed by E____ C. C____ and notarized on 28 March 2014, shows she restated her consent and also acknowledged that "…should I incur a debt to the U.S. Government as a result of favorable action taken by the ABCMR, I agree to pay such a debt."

11.  In connection with the processing of this case, DFAS was asked to verify information relevant to the FSM's SBP election, coverage, and participation.

	a.  DFAS indicated the FSM's daughter (E____ C. C____) is currently receiving the SBP annuity.

	b.  DFAS also provided a copy of the DD Form 2556-7 submitted by E____ C. C____, dated 7 April 2012, claiming the FSM's SBP (child coverage).

12.  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.

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
14.  Public Law 97-252, 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.

15.  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.

16.  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 (and children) or eligible former spouse (and children).

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend that the FSM's records should be corrected to show his SBP election was changed from spouse to former spouse coverage because the divorce judgment required the FSM to maintain RCSBP with former spouse coverage for the applicant and, although the FSM failed to comply with the court order, the applicant's attorney made a "good faith" effort to comply with the requirement to notify DFAS within 1 year of their divorce.

2.  The evidence of record shows the FSM failed to submit an RCSBP election upon receipt of his 20-year letter in October 2008.  As a result, his RCSBP coverage defaulted to Option C (that a beneficiary receive an annuity immediately upon their death if before age 60).  In the FSM's case, this was full immediate spouse and child coverage.

3.  On 18 December 2009, the FSM and applicant divorced.

	a.  The final judgment of dissolution of marriage, ordered the FSM to "cooperate in ensuring the Wife's entitlement to any portion of pay and benefits …under the Former Spouses' Protection Act and other applicable law."

	b.  Their mediation agreement, dated 5 September 2008, was incorporated as part of the final judgment of dissolution of marriage.  It specified, "In order to secure Wife's interest in Husband's military retirement, Husband shall elect to provide SBP coverage with Wife as the former spouse beneficiary at the maximum amount allowed."

4.  There is no evidence of record that shows the FSM complied with the court-ordered directive to maintain SBP with former spouse coverage.

5.  The evidence of record shows the applicant's former attorney forwarded copies of the final judgment of dissolution of marriage and military pension division order to DFAS on 18 December 2009.  However, these two documents did not contain specific instructions with respect to the FSM's RCSBP; that issue was specifically addressed in the mediation agreement.  However, the final judgment of dissolution of marriage discussed the "Former Spouses' Protection Act and other applicable law."

6.  It is not necessary to determine whether the applicant substantially complied with the requirement to establish a deemed election under the facts of this case.  The applicant was awarded RCSBP/SBP by a court of competent jurisdiction.  Her former husband did not remarry.  The only party with a superior interest, the applicant's daughter, has agreed to relinquish her interest in favor of the applicant and indicated she understands the correction might create a debt against her for any annuity payments received.

7.  Therefore, in view of all of the foregoing evidence, it would be appropriate as a matter of equity to correct the FSM's records to show his RCSBP category was changed from spouse to former spouse effective 19 December 2009.





BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 (through her attorney) submitted a timely request for a deemed election for former spouse coverage for the individual's RCSBP, the request was received by DFAS, and the deemed election was made known to DFAS on 29 December 2009.  As a result of these record corrections, DFAS shall pay the applicant the SBP annuity retroactive to 13 January 2012, provided she otherwise meets the eligibility criteria.

2.  This decision does not affect the FSM's records with respect to RCSBP child coverage.  However, the correction may result in the recoupment of SBP annuity payments that may have been made to the FSM's daughter.

3.  The applicant is advised that she may contact the nearest Retirement Services Officer for additional information and assistance regarding her eligibility for Army benefits.  A listing of Retirement Services Officers by country, state, and installation is available on the Internet at the following website: http://www.armyg1.army.mil/RSO/rso.asp.



      ______________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)                                         AR20130011766



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ABCMR Record of Proceedings (cont)                                         AR20130011766



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