IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140019295 


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 the correction of the FSM's records to show he elected Survivor Benefit Plan (SBP) coverage for former spouse.

2.  The applicant states her former spouse's record should be corrected and SBP should be restored for former spouse due to the fact that divorce procedures were started on 20 April 2009 and finalized on 17 December 2010.  She faxed the court order and SBP deemed election request from the Retirement Services Office (RSO), Fort Bragg, NC, in a timely manner on 4 February 2011.  

3.  The applicant provides three court orders, DD Form 2656-10 (SBP/Reserve Component - SBP Request for Deemed Election), and a letter to the Defense Finance and Accounting Service (DFAS). 

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 16 December 1972.  Having had prior active service, the FSM enlisted in the Regular Army on 28 November 1977. He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 April 1987.  

3.  On 1 June 1989, in conjunction with his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated he was married to the applicant, they had two minor children born in 1973 and 1976, respectively, and neither child was incapable of self support because of a mental or physical incapacity.  He elected SBP for "spouse and children" in a reduced amount of $600.

4.  He was honorably retired from active duty on 31 July 1989 in the rank of MSG and he was placed on the Retired List on 1 August 1989.  The applicant and the FSM were separated in April 2009 and were divorced on 17 December 2010.

5.  The applicant provides:

	a.  A State of North Carolina Court Order, dated 20 April 2009, wherein, in part, it states:

		(1)  The parties agree and stipulate through their signature that the equitable distribution set forth below is a fair and equitable agreement, based on the totality of circumstance, taking into consideration all factors, including the pending retirement of the Defendant (the FSM).  The agreement reflects an unequal division in favor of the Plaintiff (the applicant) and is agreed upon and accepted by both.  

		(2)  Although this is an agreement of the parties, it is also a Court Judgment and, as such, is fully binding on the parties and has the full force and effect of a Court Judgment of the Court (emphasis added).

		(3)  The Plaintiff's claim for absolute divorce is hereby voluntarily dismissed by the Plaintiff, without prejudice. 

		(4)  The Defendant is ordered to pay to the Plaintiff the sum of $1,000 each and every month as her portion of the Defendant's military retirement.

		(5)  The Defendant is ordered to maintain the SBP plan on his pension naming the Plaintiff as the spouse, or at such time as it may be appropriate, the former spouse beneficiary.  Defendant shall immediately execute any forms or make necessary arrangements to insure the Plaintiff is listed as the spouse, or when appropriate, the former spouse beneficiary.  Defendant shall be responsible for submitting the request for a deemed election and shall do so in writing within one year from the entry of this Judgment.

		(6)  The applicant, the FSM, and the applicant's attorney signed this document.  The FSM's signature was notarized on 21 April 2009.

	b.  A State of North Carolina Voluntary Dismissal, dated 21 April 2009, wherein, in part, it states, the Plaintiff hereby voluntarily dismisses without prejudice the Claim for Absolute Divorce only.  A consent Judgment is being filed resolving the other issues in this matter.  The applicant and her attorney signed this document on 21 April 2009.  

	c.  A State of North Carolina Judgment for Absolute Divorce Before the Clerk, dated 17 December 2010, wherein, in part, it states the Defendant was properly served with the Summons and Complaint in this action as provided by the Rules of Civil Procedure and failed to make an appearance.  Based of the foregoing findings of fact, the Court concludes as a matter of law that it has jurisdiction over the subject matter and the Plaintiff is entitled to an Absolute Divorce based on one year's separation.

	d.  A DD Form 2656-10, dated 4 February 2011, wherein it shows the applicant indicated the FSM retired on 1 August 1989, they had been married on 16 December 1972, they were divorced on 17 December 2010, the election was made pursuant to requirements of a court order, and the election was being made pursuant to a written agreement previously entered into voluntarily as part of/or incident to a proceeding of divorce, or dissolution of marriage.  This form was signed by the applicant and shows it was faxed from Fort Bragg on 4 February 2011.  

	e.  A letter from the applicant to DFAS, dated 26 December 2013, wherein she stated on 4 February 2011 a DD Form 2656-10 was faxed to DFAS in which the SBP [for former spouse] was requested by court order.  Her spouse said no monies had been deducted from his pay for former spouse SBP coverage.  She was providing the previously faxed DD Form 2656-10 and requested DFAS look into the matter and respond to her.  

6.  It is unknown if the FSM remarried.


7.  An official with the Department of the Army, G-1, verified telephonically on 21 July 2015 that the applicant's SBP coverage for spouse had been terminated effective April 2009 and he did not currently have SBP coverage.  

8.  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.  

9.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

10.  Public Law 99-661, dated 14 November 1986, 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.

11.  Title 10, U. S. Code, 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.

12.  Title 10, U.S. Code, section 1450(f)(3)(A) 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.  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 or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the correction of the FSM's records to show his SBP election was changed to "former spouse" coverage upon their divorce on 17 December 2010.

2.  The evidence of record confirms the FSM agreed in writing, and a court order dated 20 April 2009 stipulated, that he would maintain SBP coverage for the applicant and name her, his former spouse, as the beneficiary of his SBP at the appropriate time.  It appears he failed to do so. 

3.  It also appears when the applicant deemed the election for former spouse coverage in February 2011, she did not do so in a timely manner.  Although the April 2009 judgment effectively ordered the SBP coverage of the applicant, the applicant did not become a former spouse until over 20 months later.  If the April 2009 date drove the deemed election window, she would never have been able to deem the election.  Accordingly, it is the 17 December 2010 date which controls the deemed election.  

4.  Therefore, it would be appropriate to grant the applicant relief and show she requested a deemed "former spouse" SBP election in a timely manner.  

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 made a request for a deemed election for the SBP within 1 year of her divorce from the FSM and 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)                                         AR20140019295





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ABCMR Record of Proceedings (cont)                                         AR20140019295



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