BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130018871 


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, correction of the records a former service member (FSM), her former spouse, to show he elected Survivor Benefit Plan (SBP) former spouse coverage in a timely manner.

2.  The applicant states, in effect, that neither she nor the FSM really understood the requirement to inform the Defense Finance and Accounting Service (DFAS) of a change of SBP election to former spouse coverage.  She goes on to state that DFAS was provided a copy of their divorce decree and it was assumed that was all that was required to accomplish the change.  However, DFAS has discontinued spouse coverage and refunded all premiums paid since the divorce.  Accordingly, she desires to have the FSM re-enrolled in the SBP with a former spouse election.

3.  The applicant provides a statement from the FSM agreeing to the actions requested by the applicant, a copy of her divorce decree, letters from DFAS, a DD Form 2256-10 (SBP Request for Deemed Election), and a copy of a similar case approved by the Board.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the records of the applicant's former spouse be corrected to show he elected SBP former spouse coverage in a timely manner.

2.  Counsel states, in a five-page brief, in effect, that both the FSM and the applicant were unaware that they had to submit a deemed election for former spouse SBP coverage.  They believed the court order (divorce decree) that was provided to DFAS met the requirement for the former spouse SBP.  DFAS continued to withhold premiums until October 2012 which further reinforced their beliefs that all was well.  However, when DFAS realized the FSM was divorced and he had not remarried they refunded the FSM’s premiums from the date of the divorce until October 2012.  The FSM has retained the premiums figuring he would have to repay them and has agreed that the applicant should be deemed a former spouse under the SBP.  Counsel also notes the applicant should have been afforded one-half of the premium refund to begin with.  He also references a previous case (AR20090002986) in which the Board granted relief that is similar to the applicant’s. 

3.  Counsel provides no additional documents with his application.

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 applicant’s spouse was serving on active duty in the rank of chief warrant five (CW5) when he made his SBP election of full coverage for spouse and children on 9 July 2004. 

3.  On 30 November 2004, he was honorably retired by reason of sufficient service for retirement.  He had served 20 years, 10 months, and 7 days of active service.

4.  The applicant and the FSM were divorced on 3 December 2008.  The divorce decree (court order) provided that the FSM would provide the applicant with her share of his disposable retired pay and would continue to maintain survivor benefits options for the applicant.
5.  The FSM provided DFAS a copy of the divorce decree in order to effect the division of retired pay and initiate payment to the applicant.

6.  In September 2012, DFAS stopped withholding SBP premiums from the FSM’s account and refunded the premiums he had already paid since December 2008.

7.  The FSM provides a declaration dated 13 October 2013 in which he states, in pertinent part, that he has not remarried and he did not make a formal deemed election to change his SBP beneficiary from spouse to former spouse because he thought by providing a copy of his divorce decree everything was taken care of in that regard.  Additionally, he has held on to the refunded premiums in hopes of becoming re-enrolled in the SBP.  

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.

9.  Public Law 99-661, dated 14 November 1986, permitted divorce judgments to order SBP coverage 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.

10.  Title 10, U.S. Code, Section 1448(b)(3) provides for 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.

11.  Title 10, U.S. Code, Section 1450 (under Public Law 98-525, 19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

	a.  a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and


	b.  a copy of the court order or other official statement, either: 

	(1)  copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or

	(2)  a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with the applicable State law.

DISCUSSION AND CONCLUSIONS:

1.  Neither the applicant nor the FSM made a former spouse SBP election in the time prescribed by law.  

2.  However, the fact that the FSM did not change his beneficiary and the fact that he continued to pay SBP premiums make it evident that he believed by continuing to pay SBP premiums he was complying with the court order to continue the applicant as his former spouse SBP beneficiary.  He has always intended to behave honorably and abide by the terms of his divorce and continues to do so.  Further, the fact that he has not remarried means there is no potential taker with a legal interest superior to the applicant’s equitable interest.

3.  As such, it would be in the interest of justice to show the FSM made a former spouse SBP election within a year from the date of his divorce decree.

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 he made a former spouse SBP election on 4 December 2008, within a year of his divorce decree, and that it was timely received and processed by DFAS.



      _______ _   _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)                                         AR20130018871



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ABCMR Record of Proceedings (cont)                                         AR20130018871



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