IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014	  

		DOCKET NUMBER:  AR20140003406 


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 former spouse, a retired Soldier of the Regular Army (RA), be corrected to show he elected full Survivor Benefit Plan (SBP) coverage for former spouse.

2.  The applicant states she was married to the retired Soldier at the time of retirement, but somehow he was able to end her entitlement to SBP benefits without her concurrence.  He had abandoned her while she was recovering from a broken neck that she suffered in a car wreck which placed her on disability for a year in California where he was assigned to the Corps of Engineers.  She also had cervical cancer and had to postpone surgery due to the broken neck.  She eventually had a hysterectomy, to which he replied to her that she was no longer a "real woman."  He pursued relationships with other women and left her for days at a time.  She healed enough physically to return to North Carolina to be with her family.  He followed her and they stayed together.  He then disappeared again, leaving her at a campground in a recreational vehicle they owned, with 3 dogs and a cat.  When he retired, they were still married and he was living with her.  She discovered that he had a mistress.  He would be absent from their home for days at a time.

3.  According to Army regulations, he was supposed to have her consent to end SBP coverage, but he didn't obtain it, leaving her to believe he did it fraudulently.  She hadn't given any thought of not being covered because she knew he was supposed to have it in place when he retired and he needed her permission to end it.  They entered into a separation agreement in March of 1993 that stated he would execute all documents necessary to protect the wife's interest in his pension.  However, he knew that he had ended SBP coverage.  He did not disclose this fact.  He breached the separation agreement.  She had to obtain a lawyer.  They went to court on 6 December 1993 where he admitted he had abandoned her and committed adulterous acts.  He agreed to pay 31% of his pension instead of the previously agreed amount of 25%.

4.  She didn't know about the SBP issue until March 2012 when she called the Defense Finance and Accounting Service (DFAS) to have more taxes taken from her portion of his retired pay.  She was told that she didn't have SBP coverage.  She asked about this because she knew when she remarried her SBP would be suspended until she reached age 55.  Because she was getting close to that age, she decided to ask about how to get reinstated.  Prior to this conversation, she was unable to find out any information regarding his pension, including the amount he receives.  She never knew the amount of his retirement.  When he obtained Department of Veterans Affairs (VA) disability her payment became very low.  It wasn't until concurrent receipt was passed that she became aware of the lack of SBP coverage.  She still does not know if he is paying her 31% but she has her doubts.

5.  Even though she has sent the appropriate paperwork, he seems to have devious ways of getting around these things.  She sent a letter to DFAS Retired Pay in Kentucky to get this changed.  She called DFAS and has spent $225 on attorney fees to conduct research to find out what she can legally do to rectify her situation.  The attorney didn't get back with her for months and she had to do her own research.  She is on social security disability.  She is retired from law enforcement because of a disability due to a traumatic brain injury and other ailments.  She relies on her portion of his pension to support herself.  She is disheartened that he keeps getting away with not treating her in a respectable manner.

6.  The applicant provides copies of:

* Marital Settlement Agreement (9 pages), dated 1 March 1993
* Complaint for Divorce from Bed and Board/Alimony/Equitable Distribution (3 pages), dated 13 August 1993
* Judgment of Absolute Divorce, dated 23 August 1994
* Letter from applicant to DFAS, Retired Pay, London, KY, dated 2 March 2012
* Letter from DFAS, Retired Pay, dated 1 June 2012
* Letter from the Social Security Administration to the applicant, dated        16 May 2013


CONSIDERATION OF EVIDENCE:

1.  On 15 March 1973, the applicant's former spouse entered active duty as an Aviation Logistics Officer.  They were married on 14 February 1983.  He was promoted to major, pay grade O-4 on 1 August 1984.

2.  A Marital Settlement Agreement, dated 1 March 1993, recorded the general and specific provisions of the applicant and retired Soldier's desire to separate.  This document is silent on the matter of SBP.  The document was signed by both parties and notarized.

3.  On 31 March 1993, the applicant's spouse retired from the RA due to sufficient length of service.  He had completed 20 years and 16 days of active duty service.  His SBP election is not available.

4.  On 13 August 1993, the applicant filed a complaint with the District Court Division, County of Buncombe, North Carolina, wherein she sought alimony, divorce, and an equitable distribution of the marital property.  She stated that the retired Soldier had failed to abide by the terms of their separation agreement.  This complaint is silent on the matter of SBP.

5.  In a Judgment of Absolute Divorce, dated 23 August 1994, the court ordered, adjudged, and decreed that the bonds of matrimony between the applicant and the retired Soldier were dissolved.  This one-page document is silent on the matter of the SBP.

6.  In a letter from the applicant to DFAS, Retired Pay, dated 2 March 2012, the applicant stated that she was informed on 23 February 2012 that her former husband and retired Soldier had failed to obtain SBP at the time of his retirement in March 1993.  She contends in this letter that she should have been notified that he was declining SBP without first obtaining her consent.  She further asked that the United States Army recognize and rectify the fraudulent actions of the retired Soldier.

7.  In a letter dated 1 June 2012, the Retired and Annuitant Pay Technician, DFAS, informed the applicant that she could not deem an SBP election at this late date and that the only means by which the divorced spouse could become an SBP beneficiary was if former spouse coverage was elected by the service member or a deemed election was made on the basis of a court order.

8.  An inquiry to DFAS resulted in a reply that the current SBP election is "no beneficiary."  Subsequent inquiries resulted in DFAS not providing any documentation submitted by the Retired Soldier, or clarification of what specific actions, if any, the Soldier had taken regarding SBP.

9.  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.

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

11.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage.

12.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.

13.  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 member was participating in SBP or was still on active duty and had not yet made an SBP election.

14.  Title 10, U.S. Code, section 1448(b)(2), permits a person to elect to provide an annuity to a former spouse incident to a proceeding of divorce if required by court order to do so.  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 or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of her former spouse, a retired member of the Regular Army should be corrected to show he elected full SBP coverage for former spouse.

2.  The available evidence shows the retired Soldier was married at the time of his retirement in 1993.  Accordingly, he should have elected full SBP coverage for spouse unless he had the concurrence from his then spouse to elect less than full coverage or no coverage.  Unfortunately, there is no available evidence to review in order to make a determination as to what the retired Soldier's options were, or what option he actually took, if any at all.

3.  The applicant contends that the retired Soldier did not have her concurrence to decline SBP or to opt for anything less than full coverage.  Unfortunately, she does not provide any documentary evidence showing that she non-concurred.  Further, once they were divorced she was no longer a spouse.

4.  Efforts to obtain copies of records from DFAS have been unsuccessful.

5.  The available evidence shows the applicant was divorced from the Retired Soldier in 1994.  The court documents pertaining to the separation and divorce do not specifically mention anything about the SBP.  Therefore, she was not entitled to deem an SBP election within 1 year of the divorce.  However, the applicant may consider petitioning a court with proper jurisdiction in this matter.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20140003406



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ABCMR Record of Proceedings (cont)                                         AR20140003406



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