BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130015756 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the record of the applicant's former spouse, a retired service member (SM), to show a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  Counsel states:

	a.  The applicant and the SM were married on 24 February 1990 and divorced on 14 September 2005.  The SM retired from active duty on 31 May 2012.  

	b.  Their Marital Settlement and Separation Agreement was silent regarding any requirement for either party to inform the Defense Finance and Accounting Service (DFAS) of any election for survivor benefits.  This inartfully drafted document required the applicant to be named as "the surviving spouse of [SM]" for military retirement.  This should have read "former spouse" coverage, but it was drafted by an attorney with no experience in military pension division or SBP deemed elections.  No other mention of the pension division or election of the SBP beneficiary is made in the dissolution documents.

	c.  Even though the judgment was ambiguous as to the disposition of the SBP, the SM should have realized that he had an obligation to provide survivor benefits for the applicant.
	d.  Upon notice that the SM was scheduled to retire, the applicant contacted DFAS in attempt to get her share of the military retirement benefits and to file the forms required to be deemed the SBP beneficiary.  DFAS informed she needed to file a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and to provide an order specifying how her share was to be computed.

	e.  The applicant then hired counsel's firm to draft an Order Incident to Dissolution.  That order included language deeming her the SBP beneficiary.  Counsel found that necessary because the divorce judgment was unclear on the naming of an SBP beneficiary.  The order was forwarded to DFAS and the applicant began receiving her share of military benefits as required by the State Court order.  DFAS still did not designate the applicant as the SBP beneficiary.  

	f.  In August 2012, the applicant again wrote to DFAS asking to be deemed the SBP beneficiary, but she received a letter in response stating that the ambiguous language in the Marital Settlement and Separation Agreement was clear enough to start the 1-year clock (to file a deemed election for former spouse SBP coverage), and she was no longer eligible.  In fact, the language in the Marital Settlement and Separation Agreement was so ambiguous that it was necessary for the applicant to go back to court to get a separate order entered granting her SBP rights.  

	g.  The applicant has been wrongly deprived of her survivor benefits due to the SM's failure to comply with the original Marital Settlement and Separation Agreement.  She is the rightful SBP beneficiary.

3.  Counsel provides:

* Family Court Judgment and associated documents
* letters from DFAS 
* Consent Amended Court Order Regarding Military SBP
* e-mail

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 SM entered service as a commissioned officer on 23 May 1982. 

3.  Records provided by counsel show the SM and the applicant (L---- K. P-------) were married on 24 February 1990.  They divorced on 30 September 2005.  

4.  Counsel provides a Marital Settlement and Separation Agreement that was incorporated into the Family Court Judgment ordering their divorce.  It stated personal property awarded to the applicant was to include:

50% of the portion of [SM's] US Army retirement that was accrued during the term of the marriage…  [Applicant] shall be named as "surviving spouse" of [SM] as to this specific award.

The Marital Settlement and Separation Agreement is silent on the matter of the SBP.

5.  The SM's record contains a Servicemembers' Group Life Insurance (SGLI) Election and Certificate, dated 28 April 2011, showing he designated S---- D. 
P-------, his spouse, as the SGLI beneficiary.  An Officer Record Brief, dated 21 March 2012, also shows he was married.  The available records do not show when he remarried.

6.  On 23 January 2012, DFAS informed that applicant that, if her divorce decree specified that she was to be designated as a former spouse beneficiary for the SBP, she was required to make a deemed election for SBP coverage within 1 year of the date of the divorce or other court order requiring SBP coverage for her.  

7.  On 31 May 2012, the SM retired.  He has subsequently served on active duty as a retiree recall.

8.  On 25 September 2012, DFAS informed her that they had received her request to deem her SBP election on 22 August 2012.  DFAS stated the election for the SBP was mentioned in the Marital Settlement and Separation Agreement incorporated into the Family Court Judgment dated 14 September 2005.  DFAS informed her that her request was invalid because it had been submitted more than 1 year from the date of her divorce.  

9.  Counsel provides a Consent Amended Court Order Regarding Military SBP, dated 3 June 2013.  The order shows a circuit court reviewed the applicant's claim to be designated as the former spouse beneficiary of the SM's SBP.  The order shows the applicant and the SM agreed to the entry of the order.  The court found the applicant was entitled to former spouse coverage as the beneficiary of the SM's SBP and ordered that she was to be designated as such.  The applicant, SM, and their respective counsel provided their signatures indicating they approved of the agreement as to content and form.  The SM's current spouse was not included as a party to the entry of the order.  

10.  During the processing of this case, on 28 August 2013, the SM submitted an unsolicited memorandum to the Board requesting denial of this application.  He states, in effect, that he was not obligated to provide SBP coverage for his former spouse and later named his current spouse as his SBP beneficiary.  

11.  On 13 June 2014, counsel responded to the SM's statement.  Counsel states the SM "has misrepresented the truth, skewed facts, or appears to be attempting to commit a fraud upon the court in which the divorce was granted or upon this Board."  He describes why he believes the Board should ignore the SM's memorandum and grant the applicant the relief she requests.  Counsel provides e-mail and correspondence between the applicant, her counsel, and the SM in support of his response to the SM's statement.

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.

14.  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.

15.  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.

16.  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 evidence of record does not support counsel's request for correction of SM's record to show a deemed election for former spouse coverage under the SBP.

2.  The Marital Settlement and Separation Agreement provided in support of the applicant, though inartful, is not silent on the matter of the SBP.  In the context of that document, the term "surviving spouse" presumes the death of the SM, which in turn implicates the SBP annuity.  The fact that DFAS found this document was a sufficient basis for rejecting the applicant's request for a deemed SBP election on the basis that more than 1 year had passed is consistent with this interpretation.  

3.  The Board is aware of the various claims and counter-claims made by counsel, the applicant, and the SM.  However, the Board is neither the proper forum to resolve their dispute nor is resolution of the dispute necessary for the Board to reach a conclusion in this case.  

4.  No timely deemed election of former spouse coverage was made in this case, and the evidence shows that the SM remarried prior to retiring and that he has named his current spouse as the SBP beneficiary.  

5.  SBP elections are made by category, not by name.  Accordingly, because the SM has a spouse-only SBP election in effect, his current spouse is the lawful beneficiary of his SBP annuity.  The ABCMR will not take any action that would cause the lawful beneficiary to be ineligible to receive those benefits.  To do so would constitute an unconstitutional taking without due process of law.

6.  The ABCMR may not divest the SM’s spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM.  This court action would have to include the SM’s current spouse as a party in order to protect her interests.  The Consent Amended Court Order Regarding Military SBP provided by counsel does not meet this standard.  If, upon reviewing the matter with the SM's current spouse included as a party, a court determines the applicant is the proper SBP beneficiary, she may apply to the ABCMR for reconsideration.  A notarized statement from the SM's current spouse stating she knowingly and voluntarily relinquishes her interest in the SBP would also be a basis for reconsideration.

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)                                         AR20130015756





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ABCMR Record of Proceedings (cont)                                         AR20130015756



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