IN THE CASE OF:	  

		BOARD DATE:	    29 January 2015

		DOCKET NUMBER:  AR20140006682 


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 her records to show she changed her Reserve Component Survivor Benefit Plan (RCSBP) election from spouse and children to former spouse coverage.

2.  The applicant states she was unaware of the requirement to change her SBP category within 1 year of her divorce from her former spouse.  She states that she and her former spouse agreed to everything that is in the divorce decree and felt that the court divorce decree was all they needed.  They are sincerely regretful that they had no counseling and/or direction on how they were supposed to proceed or they would have willingly done so.  The applicant attests that there were no Judge Advocate General (JAG) lawyers available for counsel in Maine because the JAGs are for the Command; therefore, she was not counseled correctly when she submitted her divorce paperwork.  She did not find out until recently that she only had 1 year from the date of divorce to submit documentation to transfer her SBP from "Spouse" to "Former Spouse" coverage.
Her former spouse was not aware either, as he submitted the divorce paperwork to her unit and was not told any different.

3.  The applicant provides a:

* self-authored statement
* statement from her former spouse
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 24 March 2014
* letter from the U.S. Army Human Resources Command (USAHRC)
* Separation Agreement
* Settlement Agreement
* Divorce Decree

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 was born on 18 August 1964.  She is currently serving as a master sergeant/E-8 in the Active Guard Reserve (AGR) program in the Army National Guard (ARNG).

3.  The applicant and Michael R were married on 8 November 1985.

4.  On 9 January 2005, the Deputy Chief of Staff, Personnel, Defense, Veterans and Emergency Management, Augusta, Maine (ME), notified the applicant that her eligibility for retired pay upon attaining age 60 had been established.

5.  The applicant's record contains a DD Form 2656-5 (RCSBP Election Statement Certificate) completed by the applicant on 15 March 2005.  This form shows that the applicant listed her spouse and two daughters as her dependents at the time.  The daughters' dates of birth were 8 September 1986 and 25 April 1989.  The applicant elected Option C (Immediate Annuity) for spouse and children based upon her full retired pay.  Section IX (Member Signature) shows that the applicant's signature was witnessed by Darren H on 15 March 2005.

6.  The applicant and her former spouse entered into a Separation Agreement on 10 June 2005.  Paragraph 7 (Spousal Support) of this agreement states that spousal support will be paid to Michael R in amount covered in Settlement Agreement (Items numbered 4, 7, and 8).  Paragraph 8 (Effect of Divorce or Dissolution of Marriage) of this agreement states that in the event of divorce or dissolution of marriage, this Separation Agreement, and the attachments shall, if the court approves, be merged with, incorporated into and become a part of any subsequent decree or judgment for divorce or dissolution of marriage.

7.  The applicant and her former spouse entered into a Separation Agreement.  Among the agreed upon items was that the applicant will maintain Michael R as the sole beneficiary on the military retirement SBP (Married/Divorced) so that in the event of the applicant's death, Michael R will continue to receive 55 percent of the applicant retirement/disability benefits, as allowed by law.

8.  A State of Maine District Court for Kennebec County, Divorce Judgment, shows that Michael R. and the applicant were divorced on 13 October 2009.  It shows, in pertinent part, that their Separation Agreement and Settlement Agreement were accepted by the court and incorporated, but not merged, herein to the extent they are not inconsistent with any aspect of this Judgment of Divorce.

9.  The applicant's record contains a State of Maine, Department of Health and Humans Services, License and Certificate of Marriage that shows the applicant and Mark H were married on 9 October 2010.  The applicant's record is void of any evidence that shows she and Mark H were subsequently divorced.

10.  In support of her application, the applicant provides the following documents:

	a.  DD Form 2656-1, dated 24 March 2014, that shows the applicant indicated she was requesting a change in SBP coverage to "Former Spouse" due to divorce.  She indicated that she had remarried, but her former spouse had not.  She also indicated that this election was being made pursuant to the requirements of a court order and a written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution or annulment and that this voluntary written agreement was incorporated in, ratified, or approved by a court order.  The DD Form 2656-1 also shows the applicant and her former spouse each placed their signatures on the document on 2 April and 24 March 2014, respectively.

	b.  A letter from Program Manager, RCSBP, USAHRC, dated 8 April 2014, that notified the applicant her SBP request could not be processed because, by law, service members have 365 calendar days from the anniversary date of a divorce to submit a DD Form 2656-1 to deem coverage for a former spouse.  If an election is not made within the required 365 calendar days, he/she would not be able to elect former spouse and/or children coverage until applying for retired pay upon reaching age 60.  She divorced her spouse on 13 October 2009 and her attempt to elect former spouse coverage was received more than 365 days after the court order.
	c.  An undated self-authored statement wherein she explains that she desires to honor the written agreement into which she entered with her former spouse in accordance with the terms of their divorce.  She was unaware of the requirement to submit paperwork for this election within 365 days of their divorce.  She is scheduled to retire in December 2015 and wants to ensure that all required documentation is on file.

	d.  A statement rendered by her former spouse, dated 24 March 2014, wherein he echoes each of the applicant's statements and desires.

11.  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.  Elections are made by category, not by name.

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age
60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

13.  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.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

14.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of decree of divorce.  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 of filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she changed her SBP election from spouse to former spouse coverage because she and her former spouse unwittingly failed to comply with the requirement to request the change within 1 year of their divorce.

2.  The evidence of record shows that, upon receipt of her 20-Year Letter in 2005, the applicant elected full immediate spouse and child coverage under the RCSBP.

3.  On 13 October 2009, the applicant and her spouse divorced.  She was directed to maintain SBP for her former spouse; however, there is no evidence of record that shows the applicant complied with the court-ordered directive within 365 days.

4.  There is no evidence that the applicant or her former spouse notified the Defense Finance and Accounting Service (DFAS) or USAHRC to change the applicant's RCSBP coverage from spouse and children to former spouse coverage within 1 year of the divorce decree.  USAHRC misinformed her when they said she could apply for former spouse coverage when she turned age 60.

5.  The applicant married Mark H on 9 October 2010.  There is no evidence of record showing that the applicant's new spouse has relinquished his entitlement to the SBP.

6.  In April 2014, she submitted a DD Form 2656-1 to DFAS requesting to change her SBP to former spouse coverage based on her divorce in 2009 and the request was denied because it was submitted beyond the 1-year date of the divorce decree which ordered former spouse coverage.

7.  It is recognized that the divorce decree awarded the RCSBP to the former spouse and specifically ordered the applicant to timely execute all documents necessary to maintain her former spouse's designation as a (former spouse) SBP beneficiary.  Unfortunately, it appears the applicant did not take the action directed by the court, nor did the former spouse make a request for a "deemed election" of the SBP, in a timely manner.  Accordingly, upon divorce her RCSBP spouse coverage went into suspended status and vested in Mark H upon their one-year anniversary.

8.  Since the applicant's pay account reflects spouse SBP coverage, Mark H is the lawful beneficiary of her SBP, unless they are divorced.  The Board will not take any action to prevent the lawful beneficiary from receiving those benefits, in the event of the applicant's death.  To do so would constitute an unconstitutional taking without due process of law.

9.  If the applicant provides evidence to show her marriage to Mark H was dissolved, the Board may reconsider the case based on the state of the file as it stands.  If applicant is still married to Mark H or she has another current spouse, the spouse must either voluntarily relinquish their SBP interest by providing a notarized statement to that effect or the matter must be resolved in a court of competent jurisdiction.

10.  Regrettably, based on the available evidence of record, there is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20140006682





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006682



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1