IN THE CASE OF:  	  

		BOARD DATE:  26 May 2015	  

		DOCKET NUMBER:  AR20140012453 


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 reconsideration of his previous request for correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage from former spouse to spouse.

2.  The applicant states:

   a.  He is not an attorney, he is simply a humble retired U.S. Army Soldier who since November 2010 has been attempting to correct the latest error by the Defense Finance and Accounting Service (DFAS) to resolve the original error made in 1999 and 2005 by properly terminating former spouse beneficiary status for the reasons he previously presented to the Board.

   b.  He was married to his former spouse, Deena, in 1983 and she abandoned his family in 1989 because she wanted her children raised in the presence of her family and community exclusively.  Her decision is documented in Arizona Supreme Court transcripts (available to the Board upon request).  She never lived with him at any time after 1989 despite him receiving accompanied assignment orders for the continental United States (CONUS) and outside CONUS numerous times.  She took advantage of every military benefit to include his GI Bill home loan to purchase a home he never lived in and she still owns today.

   c.  He had only one contact with her during court proceedings.  She prevented every attempt to contact his children by intercepting emails, telephone calls, and the mail which resulted in no contact with his children for 15 years.  It was not until November 2010 he discovered his former spouse, through a process he had no idea of, was reinstated for SBP beneficiary status on his November end of month retiree statement.  He never received any previous notification from DFAS despite their procedures requiring notification of intent to change SBP beneficiary designees.  He does know the reason she and her attorney worked overtime to accomplish this when they did.

   d.  In September 2010, he was diagnosed with stage 4 neck cancer.  With 20 percent (%) survivability, she was betting on his dying and cashing in.  His current spouse, Deborah, is the one who deserves every benefit the military has, because without her he would be dead.  She sacrificed all her savings to see that he was taken care of by the best physicians.  In December 2011, when his cancer treatments were completed, he was diagnosed with a 19 millimeter brain tumor.

   e.  Through all of this, he had been working to get Deborah properly designated as his SBP beneficiary, which she deserves more than any person on the planet.  If DFAS had properly processed his SBP application in 1999, his current spouse would be the correct SBP recipient as of December 2000.  This was prevented as a result of the slow processing of DFAS from 1999 to the termination of the former spouse in 2005.

   f.  He was waiting for the next SBP Open Season to enroll his current spouse, but this was prevented because of actions by his former spouse.  Currently there is no justice being served by allowing his former spouse to be listed as the SBP recipient.  He cannot express the depths of emotional devastation at the status of this situation.  Having his former spouse as the SBP beneficiary is wrong on so many levels, it boggles the mind.  This is his benefit and he has been deprived of it for no sustainable reason.

   g.  Material errors and misapplication of statues and previous case law and Department of Defense Claims Appeals Board Decision resulted in a faulty decision by the board that affects his life in a grossly negative way.  The facts in his case are:

		(1)  DFAS did not make any attempt to notify him of the intended reinstatement of his former spouse as the SBP beneficiary until he discovered the error in November 2010.

		(2)  Upon discovery of the error at the first posting of his November 2010 DFAS Retiree Monthly Pay Statement, he contacted DFAS.

		(3)  He followed this with his written objections to DFAS and his Congressional liaisons.  

		(4)  He was instructed to appeal to the Army Board for Correction of Military Records (ABCMR), which he did punctually within the statutory 3-year limitation.

   h.  He cites Public Law 92-425 and 97-252 and Title 10, U.S. Code (USC), section 1448.  The former spouse SBP termination in 2005 was factually correct and accepted by all parties evidenced by the lack of timely rebuttals by any party. DFAS was the authority conducting the audit of his SBP records that determined the submission of the DD Form 2656 (SBP Election Certificate) was erroneous.  Hence, their termination of the former spouse's SBP eligibility.

   i.  The ABCMR states that he was not married in 1999 and that the former spouse was not required to provide any documentation or concurrence in support of his action on the DD Form 2656.  This is in error.  In fact, item 28(f) of that form shows he selected further qualified and clearly states to select coverage for the persons named in item 36 (Signature of Spouse) of Section VII (SBP Spousal Concurrence Required when a member is married and does not elect full coverage) who are any former spouse and dependent children of that marriage.

   j.  At the time of his retirement, he did in fact not have an eligible former spouse or spouse as an eligible beneficiary for an SBP election.  It was not until 23 December 2000 that he married and acquired an eligible SBP beneficiary.  He was prevented from selecting his current spouse at the time of marriage because of the errors made by DFAS in 1999 that were not resolved until 2005.  He could not elect his current spouse as the SBP beneficiary until an SBP Open Season was announced.

   k.  DFAS was enforcing Title 10, USC, section 1448(b) due to the erroneous assumptions made in 1999 that he was married, when in fact he was divorced 3 years prior to his retirement.  The former spouse had until February 1998 to submit a DD Form 2656-10 (Deemed Election), which she did not do.  DFAS's letter of termination clearly substantiated this as the reason for retroactive termination of her SBP eligibility.  It then remains necessarily factual that if his former spouse was ineligible due to actions resulting from the DFAS audit in 2005, it is impossible for her to ever be eligible in the future.  This requires establishment of his current spouse as the only eligible SBP beneficiary of record.  Public law clearly never intended SBP to be a former spouse's choice in perpetuity.

   l.  The ABCMR does in fact have the authority to correct the error in his SBP by virtue of the fact that the error was discovered and the process started to correct the error in less than the 3 year limitation imposed on this Board.  Termination of former spouse SBP benefits was correctly processed as a result of the DFAS audit performed in 2005.  Therefore, his former spouse cannot be a legal SBP beneficiary.

   m.  No DD Form 2656-10 was ever submitted within the 1-year time limit imposed by Title 10.  The former spouse clearly established this omission in 2005 by attempting to submit the required "deemed election" forms/statements and was rejected directly because of the failure to submit within the mandatory time limit.  No election was made by him to elect former spouse coverage within the 1-year time limitation (from date of divorce).  At the expiration of that 1-year suspense, there existed no eligible former spouse for any SBP election thereafter.

   n.  His submission of the DD Form 2656 in 1999 complied with the Arizona divorce and its authority is explicitly preempted by Title 10.  He was compelled to submit the DD Form 2656 or be held in contempt of the Arizona Court.  This form submission was administratively incomplete to the point that any election made at that time was invalid because of the non-compliance of the former spouse.  The form clearly indicated the additional actions required by the former spouse to validate any action.

   o.  Contrary to the ABCMR decision letter, there is in fact a preponderance of evidence that fully authorizes this Board to grant the requested relief.  Title 10 is very clear as are the public laws references and the Defense Claims Appeals Board decisions (previously submitted to the ABCMR).  There are no statutory exceptions or modifications to the requirement for the deemed election: submission with 1 year of the date of divorce since SBP was established in 1972. It does not distinguish between active duty divorce or post retirement.  It clearly states that an "election" or the "deemed election" must be made within 1-year of the date of divorce.  

   p.  To not grant him the requested relief would result in the gross violation of Title 10, the intent of the SBP laws, and deny his benefits that he worked so hard for as well as his current spouse's dedication to the marriage that his former spouse casted dishonor on.  He is service-connected disabled and his current spouse has literally saved his life through her dedication.  There is not a more deserving reason for granting the requested relief in full.  Failure to grant the requested relief would establish claims on SBP for former spouses not being limited to 1-year limitations following a divorce that would open the door for thousands of claims on SBP benefits going back to 1972.
3.  The applicant provides copies of his previous ABCMR Record of Proceedings and two Claims Appeals Board decisions.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120020293 on 9 July 2013.

2.  The applicant provided copies of two Claims Appeals Board decisions and new argument.  This is new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army (RA) on 10 June 1975.  He was honorably released from active duty on 7 June 1979 and was transferred to the U.S. Army Reserve.

4.  He and his first spouse, Deena, were married on 5 May 1983.  

5.  He enlisted again in the RA on 30 June 1983.

6.  He and Deena were divorced on 29 January 1997.  Their divorce decree: 

* showed 2 minor children were born of their union with birth dates of XX December 1984 and XX March 1989
* stipulated she was entitled to 55% of his retired pay and SBP providing Deena assumed responsibility for and timely paid all costs associated with obtaining the coverage to insure her continued receipt thereof

7.  On 19 April 1999, in connection with his retirement, he completed a DD Form 2656 electing former spouse and dependent children SBP coverage based on full gross retired pay.  Item 36 of the form did not indicate he was married.

8.  He retired from active duty on 30 June 1999 by reason of sufficient service for retirement and was placed on the Retired List on the retired grade of E-7 on 1 July 1999.

9.  He and his second spouse, Deborah, were married on 23 December 2000.

10.  A letter, dated 12 October 2005, shows DFAS notified him that the statutory deadline had expired on his request to elect former spouse SBP coverage.  The retiree could elect former spouse coverage within 1 year after the date of divorce. From the information they had received, former spouse coverage could not be elected or deemed.  Therefore, former spouse SBP coverage was terminated as of 30 April 2005 with an effective date of 1 July 1999.

11.  A letter, dated 12 October 2005, shows DFAS notified him of an adjustment in his SBP coverage from spouse and child with an effective date of 30 January 1997 based on his dependent becoming ineligible.  He was issued a check for $2,139.62 representing the former spouse portion of credit.  His record is void of the date DFAS gave this money back to his former spouse.  

12.  On 19 March 2012, he completed a DD Form 2656-6 (SBP Election Change Certificate) requesting spousal SBP coverage.

13.  He provides copies of two Claims Appeals Board decisions which show the following:

   a.  Case No. 99102801 – In response to the claimant's request for SBP coverage for his former spouse, the board stated that even if the member's current spouse declined benefits, the former spouse would remain ineligible in the absence of a modified court order.  DFAS had no record of the member's attempted former spouse election in 1989 and did not receive a copy of his divorce decree and separation agreement until 1993.  DFAS indicated the 1989 divorce decree did not entitle the member's spouse to SBP coverage.  A modified court order which granted the member's former spouse a right to an SBP annuity would give rise to a new 1-year period during which she could request a deemed election.  The board denied his claim.

   b.  Case No. 1010219 - In response to an appeal of the Defense Office of Hearing and Appeals decision which denied a former member's request for waiver of a debt to the government which arose when SBP premiums were not deducted from his retired pay, the board stated that they did not have any evidence the 1998 divorce decree had been terminated.  Therefore, the former spouse was appropriately the deemed SBP election and the retired member was liable for the premiums.  The board affirmed the settlement certificate.

14.  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.

15.  Public Law 92-252, the Uniformed Services Former Spouse's Protection Act, enacted 8 September 1982, established SBP coverage to former spouse of retiring members.
16.  Public Law 99-661, dated 18 November 1984, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

17.  Since establishment of the SBP, Congress has approved various periods of time known as Open Season to give retirees an opportunity to enroll in the SBP.  Each Open Season specified the rules and costs for enrollment in the SBP.  All of these open enrollment seasons were extensively publicized in Army Echoes, the Army bulletin provided to all retirees to ensure retirees were informed of their existence.

18.  Public Law 108-375 established an Open Season that began on 1 October 2005 and lasted 1 year.  Premiums charged were calculated based on the total amount of the premium, plus interest, by which the members’ retired pay would have been reduced if they had elected to participate in the SBP at the first opportunity that they had been afforded.  One-time, buy-in enrollment premiums were due at the time the retiree filed an open enrollment election, although the retiree could elect to defer any portion of the open enrollment premium and have the amount deducted from retired pay in 24 equal monthly installments.

19.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.

20.  Title 10, USC, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless, of the following requirements, whichever are applicable in a particular case are satisfied:

   a.  In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person:

		(1)  Furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

		(2)  Certifies to the Secretary concerned that the court order is valid and in effect; or

   b.  In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

		(1)  Furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

		(2)  Certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention were carefully considered and found not to have merit.

2.  The evidence of record shows prior to his retirement, he completed an SBP election form wherein he elected SBP former spouse coverage for his first spouse Deena.  It appears this election was based on their 1997 settlement agreement that was incorporated into his divorce decree.  He and Deena were divorced on 29 January 1997.  Since this election was mandated by a court order, there was no requirement for Deena to be notified of his election, and there was no option for her to accept or decline the election.  There was no new requirement that it be effective at any particular time because the applicant's retirement was in the future.  DFAS accepted the election.  

3.  In or around April 2005, DFAS notified him of the termination of his former spouse coverage with an effective date of 1 July 1999.  The termination was based on his and Deena's failure to file a "deemed election" within 1 year of their divorce.  His retired pay account was adjusted and he was issued a check representing the former spouse portion credit.  This was an error.  The applicant himself completed his DD Form 2656 in conjunction with his 30 June 1999 retirement in order to comply with the court's order. 

4.  He made an irrevocable election for former spouse coverage when he completed the election change form and named his last former spouse as his SBP beneficiary.  That election may only be changed when the member furnishes a statement signed by the former spouse that evidences the former spouse’s agreement to a change in the election or a court modifies the order.   

5.  With regard to SBP coverage for his current spouse, Deborah, at the time of their marriage on 23 December 2000 he had previously submitted an election to cover his first spouse, Deena, as a former spouse.  He did not provide a statement from his former spouse to show that she agrees with his request to change his former spouse SBP coverage to his spouse.  Regrettably, at this time there is insufficient evidence on which to grant the relief requested.   

6.  The Board does not have jurisdiction over appeals submitted to the Claims Appeals Boards and their resulting decisions.  It is noted each ABCMR case is unique and the Board makes its decisions based upon each individual set of circumstances, available evidence, and arguments presented.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20120020293, dated 9 July 2013.



      _______ _   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)                                         AR20140012453



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ABCMR Record of Proceedings (cont)                                         AR20140012453


   
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