BOARD DATE:   19 March 2015

		DOCKET NUMBER:  AR20140011972 


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 retired former service member (FSM), requests correction of his records to show a deemed election for former spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states the FSM agreed at the time of their divorce to continue SBP coverage for her.  Through counsel letters, dated 23 April 2013 and 28 June 2013, she has attempted to assist him with that compliance.  It has become clear that he is not compliant with the court's direction.  

3.  The applicant provides:

* two letters from her counsel to the FSM's counsel
* Defense Finance and Accounting Service (DFAS) letter, dated 27 May 2014
* her letter to DFAS, dated 6 June 2014
* FSM's Retiree Account Statement (RAS), dated 1 February 2012
* Order to Show Cause, Supreme Court of the State of New York, County of Ontario
* Domestic Relations Order, Supreme Court of the State of New York, County of Ontario
* Judgment of Absolute Divorce, Supreme Court of the State of New York, County of Ontario, filed 3 April 2013
* Separation and Property Settlement Agreement, filed 3 April 2013



CONSIDERATION OF EVIDENCE:

1.  The applicant and the FSM were married on 26 May 1974.

2.  On 31 January 1993, he retired from the Regular Army as a colonel/O-6.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 
14 December 1992, shows the FSM elected SBP coverage for spouse only based on the full amount of his retired pay.  

3.  In a Judgment of Absolute Divorce, dated 25 March 2013, the court ordered   their marriage dissolved by divorce.

4.  The Judgment of Absolute Divorce awards her an interest in the FSM's U.S. Military Retirement System Pension (page 12).

5.  The Separation and Property Settlement Agreement awards her a current interest in the FSM's U.S. Military Retirement System Pension Plan and as alternate payee, a survivor benefit under the plan.

6.  Her former spouse's RAS, dated 1 February 2012, shows he was paying SBP premiums for spouse only.

7.  In support of her request, the applicant provides copies of: 

	a.  The unexecuted (emphasis added) Order to Show Cause directs her former spouse, in part, to immediately execute and deliver to the applicant requisite forms DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse).

	b.  The unexecuted (emphasis added) Domestic Relations Order states, in part, that her former spouse designate the applicant as the beneficiary under his SBP.  The former spouse shall be required to make the necessary election in a timely manner to effectuate the SBP coverage for the applicant and shall execute such paper work as is required.

	c.  A 23 April 2013 letter from her counsel to FSM's counsel forwarding a proposed domestic relations order concerning the former spouse's pension under the Military Retirement Plan.

	d.  A 28 June 2013 letter from her counsel to FSM's counsel forwarding a domestic relations order concerning her former spouse's military pension and DD Forms 2293 and 2656-2.  The letter requested the forms be signed and returned to the applicant's counsel.

	e.  A 27 May 2014 letter from DFAS informing her that her application for payment of a portion of FSM's retired/retainer pay under the Uniformed Services Former Spouses' Protection Act could not be approved.  The letter further stated:

		(1)  The Judgment of Absolute Divorce (final court order of divorce) must be certified by the Clerk of the Court.

		(2)  She must submit a complete copy of the Separation and Property Settlement Agreement.

		(3)  Her application would be retained on file for 90 days.

		(4)  If her divorce decree specifies that she was to be designated as a former spouse beneficiary for the SBP, she must take action to make a "deemed election for SBP" coverage within 1 year of the date of divorce or other court order requiring SBP coverage for her directly to the Retired Pay Officer, DFAS using a DD Form 2656-1.

	f.  Her 6 June 2014 letter to DFAS forwarding a certified copy of the Divorce Decree and Separation and Property Agreement in response to the 17 May 2014 DFAS letter.  
	
8.  Public Law 99-94, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 24 September 1983, established SBP coverage for former spouses of retired members.

9.  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 1 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.

10.  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 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The former spouse's RAS for February 2012 shows he was paying SBP premiums for spouse only.

2.  They divorced on 3 April 2013.  

3.  The evidence clearly shows the court awarded her an interest in the FSM's U.S. Military Retirement Pension including SBP.  There is no available evidence showing the FSM has executed a DD Form 2656-1 to designate her as the SBP beneficiary as his former spouse.  There is also no evidence showing there is any impediment to equitable relief effectuating the agreed upon terms of the divorce. 

4.  Accordingly, it is appropriate to show the applicant submitted a timely request for a deemed former spouse election.

BOARD VOTE:

____X____  ____X____  __X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 timely request for a deemed election and that DFAS timely received and accepted her request for a deemed election.




      __________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)                                         AR20140011972



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