IN THE CASE OF:	  

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130016500 


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, in effect, the records of her former husband, a retired former service member (FSM), be corrected to show he designated her as the beneficiary of the Reserve Components Survivor Benefits Plan (RCSBP).

2.  The applicant states:

   a.  She has spent the last 18 months working to make herself the RCSBP beneficiary after her 45-year marriage to the FSM had ended.  Her former spouse remarried six months after their marriage ended and he named his current spouse as his RCSBP beneficiary.  She has now learned that her former spouse has filed for divorce from his second spouse, who is currently named as the RCSBP beneficiary and she (the current spouse) is supposed to split the RCSBP 50/50 with her (the applicant) pursuant to a court order should the FSM die.  Once that divorce is final she is afraid she will be at risk of losing the RCSBP entirely.

	b.  She should have been named the RCSBP beneficiary as a former spouse from the beginning, but after multiple attempts she still can't seem to make this happen.  They were still married when the FSM retired and they jointly continued paying SBP premiums.  During the divorce proceedings, the FSM was ordered by the court to keep up all life insurance policies in order for her to receive an RCSBP annuity should he die before her.



3.  The applicant provides copies of the following:

* timeline of events
* their marriage license
* DD Form 2656-10 (SBP/RCSBP Request for Deemed Election) (front page)
* Motion to Divide Undisclosed Asset order
* Two letters from her counsel
* Agreed Order on Motion to Divide Undisclosed Asset
* Letter from the Defense Finance and Accounting Service (DFAS)
* Motion to Clarify Agreed Order on Motion to Divide Undisclosed Asset
* FSM and current spouse's divorce decree
* Letter to the Army Review Boards Agency (ARBA)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born in October 1945.  He and Lucille, the applicant, were married on 8 July 1966. 

2.  The FSM enlisted in the Texas Army National Guard (TXARNG) on 21 September 1965.  He attained the rank/grade of command sergeant major (CSM)/E-9. 

3.  It appears that in 1986 he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

4.  His record contains a DD Form 1883 (SBP Certificate), dated 28 March 1986. He indicated he was married to Lucille, the applicant, and they had three children, born in 1967, 1970, and 1981 respectively.  He elected RCSBP for "spouse and children," Option C (immediate coverage), based on the full amount. 

5.  The FSM was released from the TXARNG on 31 December 1991 and was transferred to the Retired Reserve.  

6.  His record also contains the back page of a DD Form 2656 (Data for Payment of Retired Personnel), dated 24 May 2005.  The FSM indicated he was married to Lucille, the applicant, and elected "spouse only" SBP coverage.  The form was witnessed on the same date.  

7.  He was placed on the retired list effective 6 October 2005.

8.  On 29 August 2011, the FSM and applicant were divorced.  The divorce decree she provides is silent with respect to the SBP.  
9.  There is no indication the FSM changed his election to former spouse SBP coverage within one year of their divorce.  Likewise, there is no indication, Lucille the applicant, submitted a deemed election within one year of her divorce from the FSM. 

10.  The FSM married Tammy on or about 9 March 2012.  She appears to have become an SBP beneficiary on 8 March 2013. 

11.  The FSM and Tammy were divorced on 20 February 2014.  Their divorce decree removed Tammy as beneficiary of any and all SBP benefits.

12.  The applicant also provided copies of the following:

	a.  A DD Form 2656-10 (front page), undated, which lists her as the FSM's former spouse.

	b.  A letter, dated 2 January 2012, wherein she requested DFAS look into the matter and inform her regarding her SBP eligibility.  

   c.  A Motion to Divide Undisclosed Asset order, filed and recorded on 6 July 2012, wherein she stated the existence of the FSM's SBP was not disclosed to her during the divorce processing; therefore, no orders were made regarding that benefit.  She requested award of 100 percent (%) of the FSM's RCSBP.

	d.  A letter, dated 9 July 2012, wherein the applicant's attorney provided the FSM a copy of the Motion to Divide Undisclosed Asset.

	e.  An Agreed Order on Motion to Divide Undisclosed Asset, dated 20 August 2012, wherein the court found the SBP was not divided in the final decree of divorce on 29 August 2011.  The court ordered the applicant be awarded 50% of the FSM's SBP and the remaining 50% of the plan shall be retained by the FSM and he could elect the beneficiary, if any, for that portion of the plan.  The court also ordered the FSM to pay 100% of all premiums to maintain said plan with the applicant reimbursing the FSM 50% of the premiums from the plan directly to the FSM in advance by semi-annual installments, beginning 1 September 2012, or as soon thereafter as she received actual notice from the FSM of the cost and each year thereafter that the FSM made premium payments.  The court further ordered the FSM sign any and all documents necessary to effectuate that order immediately upon presentment and that all documents be presented, signed, and submitted to DFAS on or before 29 August 2012.

	f.  a DD From 2656-1 (SBP Election Statement for Former Spouse Coverage), dated (witnessed) on 15 and 20 August 2012 respectively, wherein the FSM elected 50% SBP coverage for the applicant pursuant to a court order.  

	g.  A letter, dated 21 September 2012, wherein DFAS advised the applicant of the following:

		(1)  A deemed election of SBP must include a court order that specifically required the member to elect coverage on behalf of his former spouse.  In addition, the court order could not limit or qualify the former spouse SBP in a manner that was contrary to federal law.

		(2)  Federal law specified that SBP cost could only be deducted from a member's retired pay.  A court order that specified that the SBP costs were to be deducted from the former spouse's portion of the member's retired pay was contrary to the requirements of federal law. 

		(3)  The court order granting her former spouse coverage stated "It was ordered that the [Applicant] was awarded 50% of the SBP from the FSM's ARNG pension.  The remaining 50% of the plan should be retained by the FSM and he could elect the beneficiary, if any for that portion of the plan."  Therefore, her request to deem former spouse coverage was invalid and her former spouse coverage had been terminated effective 29 August 2011 (the date of her divorce).

		(4)  They could not reestablish former spouse SBP coverage on the basis of a deemed election request until they received a modified court order.  Once a modified court order was obtained, she would have one year from the date the modified order was entered to make a deemed election.

	h.  A Motion to Clarify Agreed Order on Motion to Divide Undisclosed Asset order, filed and recorded on 13 March 2013, wherein the court stated:

		(1)  DFAS had rejected the court order because it designated more than one beneficiary of the SBP in violation of DFAS requirements.  DFAS further rejected the order because it did not name the applicant as the former spouse beneficiary for the SBP as required for the order to be effective.  The parties could not reach an agreement as to how to draft the language in the order to carry out the intentions of the parties that the applicant receive 50% of the SBP.

		(2)  The applicant believed that an order could be drafted that would satisfy the language requirements of DFAS without altering the agreement of the parties.  The applicant requested that the court specify in its clarifying order the duties imposed on the FSM and a reasonable time within which compliance would be required,

	i.  The FSM and his current spouse's divorce decree, dated 20 February 2014, which showed the FSM was removing her as the beneficiary of any and all of his SBP to which she was currently named as a beneficiary.

	j.  A letter, dated, 26 February 2014, wherein she advised this Board that the FSM was not deceased.  She also stated that she was married to the FSM for 45 years and because of a paperwork error she had lost the SBP to the FSM's new wife of one year, Tammy, but just last month he divorced her.  

13.  On 21 October 2013, a staff member of DFAS verified that the FSM currently has spouse SBP coverage and his beneficiary is listed as Tammy with an effective date of 9 March 2013.  The prior SBP was for spouse and child with an effective date of 6 October 2005.

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

15.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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 one 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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM elected SBP spouse and child coverage in March 1986.  Since he elected Option C, he did not have the option to make a new election at age 60.  SBP coverage remained as "spouse" after the children aged off.  The election he made on 24 May 2005 is invalid. 
2.  He and Lucille, the applicant, were divorced on 29 August 2011 and SBP was not awarded to the applicant.  The FSM did not make a former spouse election within 1 year of their divorce.  A change in the SBP beneficiary would have been a strictly voluntary action on the part of the FSM absent a provision in the divorce decree, which the evidence of record shows he did not make.  

3.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  Under Federal law, a signed election request must be received before action can be taken to establish former spouse election.

4.  Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election.  Here, their divorce decree did not grant her SBP benefits so she could not request a deemed election.  Since SBP elections are made by category, not by name, once the FSM and the applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  

5.  On 6 July 2012, Lucille, the applicant, went back to court and requested award of 100 percent of the FSM's SBP as the existence of his SBP was not disclosed during the divorce proceedings.  On 20 August 2012, the court ordered the applicant be awarded 50% of the FSM's SBP.  On 15 Augusts 2012, the FSM completed a new DD Form 2656-1 for former spouse coverage for 50% of his SBP to Lucille, the applicant, pursuant to the court order.  He also acknowledged his retaining the remaining 50% of his SBP.

6.  DFAS advised the applicant on 21 September 2012 that they could not reestablish former spouse SBP coverage on the basis of a deemed election request until they received a modified court order because SBP cannot be split between two beneficiaries.  Once a modified court order was obtained, she would have one year from the date the modified order was entered to make a deemed election.  

7.  There is no evidence of record and the applicant did not provide sufficient evidence of a modified court order awarding her 100% of the FSM's SBP, since there can only be one beneficiary.  DFAS also advised the applicant that she would have one year from the date the modified order was entered to make a deemed election.  DFAS verified the FSM's current SBP coverage was for his current spouse, Tammy.

8.  If the applicant receives a modified court order for 100% of the FSM's SBP, she can deem an election directly to DFAS.
9.  There is no basis to now designate the applicant as the recipient of said benefits at this time.

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)                                         AR20130016500



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ABCMR Record of Proceedings (cont)                                         AR20130016500



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