IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140003571 


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 military records of her former spouse, an enlisted member of the Retired Reserve, to show that he changed his Survivor Benefit Plan (SBP) from spouse coverage to former spouse coverage within 1 year of their divorce. 

2.  The applicant states the Defense Finance and Accounting Service (DFAS) has provided her a copy of the inquiry she made back in 2002 concerning the Qualified Domestic Relations Order (QDRO) that was filed on 28 March 2002.  At that time she had requested information about how she could obtain beneficiary status for SBP as the former spouse.  She does not recollect being asked to provide any additional information.  In May 2013, she again contacted DFAS regarding the SBP that she was entitled to as noted in the QDRO.  In September 2013, DFAS wrote to her saying that the issue was now a civil matter.  She is now requesting to be provided with any and all proof that supports DFAS claiming she was remiss in completing the necessary paperwork.  She contends that maybe her paperwork was not properly recorded in the system or correctly processed by DFAS.

3.  The applicant provides copies of:

* QDRO, dated 28 March 2002
* Letter, dated 13 August 2002, addressed to "Whom It May Concern"
* DD Form 2656 (Data for Payment of Retired Personnel) dated 20 June 2011
* Letter from the applicant to DFAS, dated 3 May 2013
* Letter from DFAS to the applicant, dated 20 September 2013

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 former spouse served in an enlisted status for more than      36 years between 1974 and 2011.  He performed duty in the U.S. Marine Corps Reserve and in the Army National Guard.

	a.  He was notified in a letter dated 22 November 1996 that he was eligible for retired pay at age 60.

	b.  He completed a DD Form 1883 (SBP Election Certificate) in January 1997 that shows he elected spouse and children SBP coverage at the full amount.  This form shows that the applicant was the service member's spouse at the time and that they were married on 1 November 1980.

	c.  He attained the rank of command sergeant major, pay grade E-9, on 
1 April 1998.

3.  The QDRO, dated 28 March 2002 as provided by the applicant, shows that the court granted a final divorce.  It further provided, in effect:

	a.  that she was granted 50 percent of her former spouse's retired pay based on the marriage lasting for a period of 20 years, 2 months, and 2 days, all of which was as a military dependent;

	b.  that DFAS was to issue separate checks when benefits became payable; and

	c.  that the applicant's former spouse was required to name the applicant as beneficiary under the SBP and further ordered the former spouse to immediately notify DFAS, in writing, of any changes in addresses.

4.  The applicant has provided a 1-page letter addressed to "Whom It May Concern," dated 13 August 2002.  The document asks for information about survivor benefits and states she has a court order in her divorce decree saying she is entitled to survivor benefits.  She asks to be sent information on how to receive these benefits.  The letter provides her attorney's name and address, a fax number, her name and address and phone number.

5.  A DD Form 2656, dated 20 June 2011, shows the applicant's former spouse had applied for retired pay to be effective 1 August 2011.

	a.  He listed his then current spouse, showing they were married on 5 July 2003.

	b.  He elected SBP coverage for his spouse based on his full retired pay.

	c.  The form was signed and dated by the SBP counselor.

6.  In a letter to DFAS, dated 3 May 2013, the applicant asked why DFAS had not complied with the QDRO dated in 2002.  She pointed out that the court had awarded her 50 percent of her former spouse's retired pay and she was to be made the beneficiary of his SBP.  The letter further states that in the most recent court proceeding, it was determined that he had an obligation to provide her with survivor benefits and agreed to replace the SBP with life insurance she would own.  However, he was uninsurable.

7.  In a letter dated 20 September 2013, the applicant was advised by DFAS that at the time of her divorce she had 1 year in which to deem an election for the SBP.  Her eligibility to deem this election was not dependent on any action by her former spouse.  Eleven years later, when her former spouse retired and made “a valid election” for his current spouse, DFAS could no longer award her the SBP benefit.  Now, her only recourse is to take the matter to civil court.

8.  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 SBP election, must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former military spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

10.  Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse 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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the military records of her former spouse should be corrected to show he changed his SBP election from spouse coverage to former spouse, thus making her the beneficiary of his SBP.

2.  The available evidence shows the applicant was divorced in 2002 and was granted half of the military retired pay and was to be named as the beneficiary for his SBP.  Unfortunately, it appears the applicant did not fully understand the process and may not have been properly advised by her counsel concerning a deemed election for the SBP within a year of the divorce.  Further, to the extent she attempted a timely deemed election, the evidence is insufficient to show that it was sent to the appropriate DFAS officials.

3.  The applicant's former spouse was ordered to change his SBP election to former spouse; however, he did not do so.  He remarried in 2003.  After a year of marriage, his new spouse automatically became vested as the beneficiary for his SBP.  Therefore, unless the current spouse offers to forfeit her interest in the SBP, or if a court of competent jurisdiction to which the spouse is a party decrees the applicant has a greater interest as an SBP beneficiary based upon the settlement agreement and the divorce decree and divests the current spouse of her interest, this Board cannot provide the applicant's requested relief.

4.  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)                                         AR20140003571





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003571



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1