IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140006418 


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, the former spouse of a deceased former service member (FSM), requests, in effect, correction of the FSM's records to show a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, the court ordered her former spouse to maintain the former spouse benefit under the SBP.  After the death of her former spouse, she filed for SBP benefits but was told she was not eligible because a deemed election had never been made.  It was her understanding that her SBP benefit could never be changed.  She was never informed about the need to request a deemed election.

3.  The applicant provides:

* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 31 October 2001
* the FSM's death certificate
* Final Order and Decree of Divorce
* a statement from her attorney, dated 14 March 2014

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 and the FSM were married on 19 May 1982.  On 31 October 2001, he was retired from the Regular Army and placed on the Retired List the following day.  A DD Form 2656 (Data for Payment of Retired Personnel) shows the FSM elected SBP coverage for spouse and children based on the full amount of his retired pay.  

3.  On 3 February 2004, the applicant and the FSM were divorced.  The FSM was ordered by the court to continue to pay SBP premiums due and his spouse was to remain the sole and irrevocable beneficiary of the "former spouse benefit plan."

4.  On 30 December 2013, the FSM died.  His death certificate shows he was divorced and had no surviving spouse.  

5.  An email, dated 19 May 2014, from the Defense Finance and Accounting Service (DFAS) provided the FSM's DD Form 2656, their divorce decree, a statement from the applicant, dated 10 January 2014, and an undated statement from the FSM.  In the undated statement, the FSM provided a copy of his divorce decree and requested that his SBP be canceled as soon as possible.

6.  The applicant provided a statement, dated 14 March 2014, from her attorney, who stated:

	a.  She was informed by the Personnel and Retirement Divisions at Fort Jackson, SC that the FSM would have to provide any documents she was requesting.

	b.  The FSM had held out to the court, the applicant, and her that he had fully complied with the court's order and that she had received all necessary and required information.

	c.  She was assisted by Retirement Personnel at Fort Jackson, SC, DFAS via telephone, and Military Personnel Office officials in attaching part of the FSM's pay/retirement in order for his court ordered child support and alimony to be paid.  
	d.  She had many conversations with many individuals over the course of many months, wherein she repeatedly inquired if there was anything else that needed to be done regarding retirement benefits or SBP benefits or steps to be taken to safeguard the applicant and her children.  Each and every time she was informed that there were no additional steps that needed to be taken and all documents that were needed had been received by the Military Personnel Office.

	e.  Now she is being informed an additional document (deemed election) should have been filed and that it was the applicant's or her responsibility to "research" out the information and documents.  She feels the Army had an affirmative duty to inform them of the need for a deemed election, especially when the Army's representatives had been asked on many occasions if any additional forms, documents, or information were required.

7.  Public Law 99-94, the Uniformed Services Former Souses Protection Act (USFSPA), enacted 24 September 1983, established SBP coverage for former spouses of retired members.

8.  Title 10, U.S. Code (USC), 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.

9.  Title 10, USC, section 1450 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.  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 FSM was clearly ordered by the court to designate the applicant as the former spouse SBP beneficiary.  The undated statement by the FSM on file at DFAS shows he had no intention of complying with the court order.

2.  The statement from the applicant's attorney shows the applicant and her attorney exercised due diligence at the time of the divorce in attempting to provide all documents required to protect her and her children.  At some point during the process and contact with Army authorities a "duty to assist" should have surfaced and the requirements of a deemed election for SBP benefits should have been explained to the applicant and her attorney.

3.  Spouses and former spouses are not routinely counseled concerning the need to file a deemed election with 1 year of a divorce.  

4.  In the interest of justice, it is appropriate to correct the FSM's military records to show the applicant submitted a written request within 1 year of the date of the divorce for a deemed election and that the election of former spouse coverage based on the full amount of the FSM's retired pay be deemed to have been made.

5.  Although relief is appropriate, the ABCMR recognizes its fiduciary duty in protecting the viability of the SBP.  In order to grant relief, the ABCMR recognizes that any SBP premiums that may be due since the applicant and the FSM were divorced would have to be paid into the SBP.  As the FSM is deceased, this burden necessarily falls on the applicant, despite the terms of the divorce decree.  To the extent that these premiums should have rightfully been paid by the FSM, the applicant’s recourse is limited to an action against the FSM’s estate.

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the applicant submitted a written request on 4 February 2004 that the election of former spouse coverage under the SBP based on the full amount of the FSM's retired pay be deemed to have been made and that this request was timely received and processed by DFAS, and that the applicant be paid the SBP annuity retroactive to the day after the FSM's death.

2.  The applicant is responsible for payment of the SBP premiums that may be due and payable since the applicant and the FSM were divorced; the premiums will be deducted from benefits payable to the applicant.
  




      ___________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)                                         AR20140006418



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ABCMR Record of Proceedings (cont)                                         AR20140006418



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