BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130020298 


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, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage or as an alternative, that his records be corrected to show that she made a timely former spouse election. 
 
2.  The applicant states, in effect, that she and the FSM agreed as part of their divorce settlement that each would be the beneficiary of the other’s retirement/pension benefits unless there was an impediment that prevented it. However, the FSM died before making a former spouse election.  She goes on to state that she attempted to make the election but was told that she did not do so in a timely manner and that the divorce decree was not specific enough to make such an election.

3.  The applicant provides the following in support of her application:

* Excerpts from the Department of Defense Financial Management Regulation
* An affidavit from her divorce attorney
* Verification of Annuity Payments
* Letter from the North Carolina Department of State Treasurer Retirement Systems Division
* Letter from the Defense Finance and Accounting Service (DFAS), dated  31 August 2012
* Appeal to DFAS from counsel
* Letter from DFAS, dated 18 December 2010
* DD Form 2656-7 (Verification for Survivor Annuity), dated 16 November 2010 and signed by the applicant
* Copies of court documents and divorce decree
* FSM’s death certificate
* Department of Defense Instruction (DODI) 1340.21
* Consent order regarding equitable distribution and waiver of alimony

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the records of the deceased FSM be corrected to show he changed his SBP coverage to former spouse coverage or as an alternative, that his records be corrected to show the applicant made a timely former spouse election. 
 
2.  Counsel states, in effect, that the applicant has been unjustly denied the survivor benefits that she and the FSM agreed to at the time of their divorce and which was codified in the 2010 Consent Order.  He goes on to state that unfortunately, the FSM died before he was able to execute the appropriate documents to implement the agreement, specifically a former spouse designation of SBP.  

3.  Counsel provides an eight-page brief explaining the applicant’s 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 FSM was born in 1947 and was serving in the U.S. Army Reserve (USAR), in the pay grade of E-7, when he was issued his Notification of Eligibility for Non-Regular Retired Pay at Age 60 (20-Year letter) on 23 December 1989.

3.  On 10 April 1995, he was transferred to the Retired Reserve where he remained until he turned 60 years of age in 2007 and was transferred to the AUS Retired List.  He elected spouse only SBP coverage and listed the applicant as his SBP beneficiary.

4.  On 27 May 2009, the applicant and the FSM were divorced in a District Court of North Carolina.   

5.  On 4 January 2010, in a Consent Order regarding equitable distribution and waiver of alimony, the applicant and the FSM agreed to designate each other as the beneficiary of their retirement pension annuity benefits providing that there were no impediments that prevented such designations.

6.  On 28 August 2010, the FSM died at the age of 62 and had not remarried.  Information received from DFAS indicates the FSM’s SBP coverage was for spouse only and the applicant was listed as his spouse.

7.  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.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

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

10.  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 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(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.  Although there appears to be no evidence to show that either the FSM or the applicant requested his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears that it was the FSM's intention to provide an SBP annuity for the applicant.

2.  The FSM continued to pay SBP premiums after their divorce, he never remarried, and no one is currently receiving the annuity.  It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage 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:

      a.  the FSM made a written request to change his SBP coverage to former spouse on 1 February 2010 and the request was accepted and processed by the appropriate office in a timely manner.

      b.  the applicant is paid the SBP annuity effective 29 August 2010, the day after the FSM's death, less any deductions calculated 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)                                         AR20130020298



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ABCMR Record of Proceedings (cont)                                         AR20130020298



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