IN THE CASE OF:    

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140004496 


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 correction of the records of her former spouse, a former service member (FSM), to show they were divorced on 19 November 2013 instead of 29 September 2010, in order for her to qualify for the Survivor Benefits Plan (SBP) benefits. 

2.  The applicant states:

   a.  She believes the records of her former spouse show they were divorced on 29 September 2010.  That divorce was set aside and vacated on 19 November 2013.  Then they were re-divorced on the same date (19 November 2013).  She is requesting their divorce date be corrected in his records so she would be eligible for SBP benefits.  

   b.  At the time of their original divorce, the FSM was to complete all necessary forms pertaining to garnishment and SBP.  When she contacted him, he would state he was waiting on the paperwork or that he had sent the forms in, but he hadn't heard anything.  Finally, she learned that he had not done his part.  The FSM told her that he had forgotten to tell her that she had to apply.  He then told her about the former spouse website.  This was the first time she had heard about this site.  She also didn't know about the 1-year filing requirement.

   c.  She went back to her lawyer for advice and he suggested that they vacate the original divorce decree and re-divorce to be in compliance with SBP's 1-year filing rule.  The FSM agreed and that has happened.  SBP still has been denied.  She believes that DFAS is still looking at the original vacated divorce.  She needs help in getting that corrected.  SBP premiums are still being deducted from the FSM's pay and he still has her listed as his beneficiary.  She feels like she is the victim here.  It is costing the FSM nothing and her thousands of dollars and great emotional turmoil.

3.  The applicant provides copies of the following:

* Settlement Agreement
* Order
* Final Decree
* letter from the Defense Finance and Accounting Service (DFAS)
* email correspondence from "Ask Retired Pay"
* DD Form 2656-10 (SBP/Reserve Component SBP Request For Deemed Election)

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant were married on 8 February 1973.

2.  He enlisted in the Regular Army on 14 August 1973.  His records contain the following:

   a.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 2 June 1992, which shows in:

* Part VI – Designation of Beneficiary – he named the applicant as his beneficiary for his final retired pay and designated his father as the beneficiary if he had no surviving spouse or children
* Part V - SBP Election – he indicated he was married to the applicant, had dependent children, and elected "spouse only" coverage at a reduced amount of $378.00
* Part VI - Certification – his signature which was witnessed on 2June 1992
* Part VIII – SBP Certificates – on 2 June 1992, he entered his signature in item 23a (Required To Be Completed By Soldier); on the same date, he and the applicant entered their signatures in item 24a (Required When Soldier Elects Reduced Coverage or Declined Coverage For Spouse) indicating their agreement of his reduced election coverage  

3.  The FSM was honorably retired on 31 August 1992.



4.  The applicant provides copies of the following:
   
   a.  A Settlement Agreement, dated 27 September 2013, which stipulated that the applicant was entitled to full SBP benefits.

   b.  An Order, dated 19 November 2013, which set aside and vacated in its entirety the Final Judgment of Divorce entered on 29 September 2010.

   c.  A Final Decree, dated 19 November 2013, which stipulated that the applicant was entitled to full SBP benefits.

   d.  A letter, dated 25 January 2014, wherein DFAS advised her of the following:

		(1)  Her attempt to deem an election of SBP former spouse coverage could not be processed because her application to deem the election was received more than 1-year after the court order she sent them.

		(2)  A spouse loses eligibility as a SBP beneficiary upon divorce.  There was no provision that made former spouse coverage an automatic benefit.  The only means by which the divorced spouse could become an SBP beneficiary was if the former spouse coverage was elected by the service member or a deemed elected was made on the basis of a court order.

		(3)  A court order by itself could not be issued to institute coverage.  An election could be deemed on the basis of a court order or court-approved agreement by the former spouse or the former's spouse's attorney.  The request must be received along with a DD Form 2656-10 within 1-year of the date of the original court order which awarded the coverage.

   e.  Email correspondence, dated 26 February 2014, wherein "Ask Retired Pay" in response to her request advised her of the following:

		(1)  She was denied SBP as a former spouse because she was not awarded SBP in her original divorce decree in 2009 (sic).  If she was not awarded SBP in the original divorce decree in 2009 (sic) and the result of her (Motion to Vacated/Amended) decree was to add her as a beneficiary in the recently finalized divorce decree (19 November 2013), she would have had       1-year from 19 November 2013 to make the election.

		(2)  The only option that she had to appeal the decision since the foregoing stated situation did not apply to her, was by contacting the FSM's military board of corrections with the attached DD Form 149 (Application for Correction of Military Record) and sending it to the branch of service.  If a decision was made in her favor by the board of corrections, DFAS would make the correction upon receipt of their approval.

   f.  A DA Form 2656-10, dated 28 February 2014, she completed for SBP benefits.

5.  There is no available evidence the applicant submitted a deemed election for SBP within the required 1-year period after their 2010 divorce.  There is also no evidence the FSM changed his original SBP election from "reduced" to "full" prior to either divorce.

6.  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 elected, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

7.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

8.  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.

9.  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 1 year of the date of the court order or filing involved.

10.  In Matter of:  Request for Advance Decision—SBP Beneficiary of Technical Sergeant Weldon C. Sikes, U.S. Army Force, Retired, 73 Comp Gen 22 (1993 U.S. Comp. Gen), the Comptroller General declined to allow a subsequent dissolution order entered "nunc pro tunc" to re-start the former spouse's 1-year deemed election clock, because its only purpose was to circumvent the statutory time constraints placed on deemed elections.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows on 2 June 1992, the FSM elected "spouse only" SBP coverage at a reduced amount.  On the same day, the applicant acknowledged her agreement with this election.  The FSM and applicant were originally divorced on 29 September 2010.  There is no evidence and she did not provide any showing full SBP benefits were stipulated to her at that time.  

2.  On 19 November 2013, the court set aside and vacated the 29 September 2010 divorce and granted them a divorce again effective 19 November 2013.  In this divorce, full SBP was stipulated to the applicant.  

3.  The applicant's 2013 same day vacation of the 2010 divorce and re-entry of a "new" divorce order were clearly done solely for the purpose of re-starting the applicant's deemed election window and, in line with the Comptroller General's authority previously cited, is an improper circumvention of a statutory requirement.  It cannot be recognized as a matter of law.  And, it is plainly inconsistent with generally recognized equitable principles to reward such a ruse.

4.  The Board is not unsympathetic to the applicant's plight.  However, the divorce decree upon which equitable relief might otherwise have been based, the original 2010 order, has been rendered a nullity.

5.  In view of the foregoing, the applicant is not entitled to the requested relief.

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)                                         AR20140004496





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ABCMR Record of Proceedings (cont)                                         AR20140004496



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