IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20140018050 


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 former service member (FSM) requests, in effect, correction of the FSM's records to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and changed his election from spouse to former spouse.

2.  She states she and the FSM were divorced on 23 January 2011.  She adds there were many delays in the judgment and the Military Qualifying Court Order was not entered by the court until 10 January 2013.  She says she made a timely deemed election within one year of the date of the qualifying order, but she was unaware of the Defense Finance and Accounting Service (DFAS) requirement to have the deemed election made within one year of the divorce.  She also notes that the FSM has not remarried.

3.  She provides:

* Self-authored statement
* State of Michigan, Military Qualifying Court Order, dated 10 January 2013
* State of Michigan, Divorce Decree, dated 23 June 2011
* DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 
22 August 1994
* DFAS letter, dated 7 February 2013
* Orders P10-815755, dated 8 October 2008
* DD Form 108 (Application for Retired Pay Benefits), dated 25 February 2008
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 1 February 2007
* Counsel's letter, dated 15 February 2013
* DD Form 2656-10 (SBP/RCSBP Request for Deemed Election), dated
28 February 2013 

CONSIDERATION OF EVIDENCE:

1.  On 20 December 1971, the FSM was appointed as a second lieutenant in the U.S. Army Reserve.  His date of birth is shown as 22 March 1949.

2.  On 18 October 1980, the FSM and the applicant were married.

3.  A copy of the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-year letter), is not contained in his available file.  However, on 22 August 1994, he completed DD Form 1883 which indicated that he applied for RCSBP for spouse and children and he elected Option C (Immediate coverage) at a full base amount.  The form is listed as a "Certified True Copy." 

4.  Orders P10-815755, dated 8 October 2008, show the FSM retired and he was placed on the retired list in the grade of lieutenant colonel on 22 March 2009.

5.  On 23 June 2011, the FSM and the applicant divorced.  A Consent Judgment of Divorce, dated 23 June 2011, states in paragraph E (Retirement Benefits), subparagraph c, in pertinent part, "To the extent necessary to protect [applicant's] benefit in the event of the [FSM's] death, the [applicant] will be designated as the surviving spouse for the purposes of all death benefits under the plan and the [FSM] shall elect SBP coverage and select full retired pay as the base amount.  [Applicant] shall be designated by the [FSM] as his 'former spouse' beneficiary." 

6.  On 10 January 2013, a Military Qualifying Court Order was approved and added as part of the divorce agreement.  Paragraph 8, of the order stated, in pertinent part, that "The Court hereby orders that the Former Spouse shall be the [FSM's] irrevocable beneficiary of the survivor's SBP annuity through the FSM's military retirement.  Further, the [FSM] also agrees to make the necessary election in a timely manner to effectuate the SBP coverage for the Former Spouse and shall execute such paperwork as is required.  The level of SBP coverage required for the Former Spouse shall be that which will provide her with the same benefits payments after the [FSM's] death that she was eligible to receive or receiving before his death."  

7.  On 7 February 2013, DFAS informed the applicant's counsel that her application could not be approved.  If the applicant's divorce decree specified that she was to be designated as a former spouse beneficiary for the SBP, she must make a deemed election for SBP coverage within 1 year of the date of her divorce or other court order requiring SBP coverage.  The deemed election request should be submitted directly to the Retired Pay Office.  The request must be submitted using a DD Form 2656-10.

8.  On 15 February 2013, the applicant's counsel informed her that she was required to complete the enclosed DD Form 2656-10 and submit it to the address highlighted in the enclosed letter.

9.  On 28 February 2013, the applicant completed and signed DD Form 2656-10. A "certified receipt" card shows that DFAS signed for a document from the applicant on 4 March 2013.

10.  In an email from DFAS, dated 7 November 2014, the agency stated their record shows the applicant and the FSM were divorced in June 2011, but the election for Former Souse coverage was not deemed within 1 year.  Therefore, the applicant was not eligible.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, 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 SBP 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.  

10.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  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:  (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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.

11.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant and the FSM divorced on 23 June 2011.  As part of the divorce decree, the FSM was required to elect SBP coverage at the full amount of retired pay and designate the applicant as his former spouse beneficiary.  According to the applicant, the FSM has not remarried.  Thus, there is no spouse beneficiary with an interest superior to that of the applicant.

2.  The evidence of record further shows on 10 January 2013, a Military Qualifying Court Order was approved that stated the applicant, the former spouse, shall be the FSM's irrevocable beneficiary of the SBP annuity.  Additionally, the order stated that the FSM agrees to make the necessary election in a timely manner to effectuate the SBP coverage for the former spouse

3.  On 28 February 2013, the applicant completed and signed DD Form 2656-10 and it appears that DFAS signed for the deemed election application on 4 March 2013.  However, since the deemed election was not received within 1 year of the divorce decree, DFAS did not accept her request.

4.  Given the SBP award in the final divorce decree and the Military Qualifying Court Order, it would be equitable and just to correct the FSM's records to show she submitted a written request for a deemed election within 1 year of the date of the divorce.

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:

   a.  the applicant submitted a written request for a deemed election of former spouse coverage on 1 June 2012 and
   
   b.  this request was timely received and processed by DFAS.



      ___________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)                                         AR20140018050





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