IN THE CASE OF:	

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003201 


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, in effect, that the records of her former spouse, a former service member (FSM), be corrected to show she is entitled to Survivor Benefit Plan (SBP) coverage.

2.  The applicant states that the FSM elected SBP at retirement and he also elected to continue SBP coverage for her during their divorce.  The FSM never intended for the coverage to stop and he continued to pay the premiums until his death.  His Retiree Account Statement, effective 6 December 2001, shows the change from "spouse" to "former spouse" in the Protection Act Deductions section, but the coverage type for the SBP was left unchanged and reads "spouse only."  She further contends that the deemed election she submitted was never processed.  The court having jurisdiction over the divorce case has since modified the decree so that she is the deemed beneficiary for the FSM SBP.

3.  The applicant provides:

* U.S. Postal Service Certified Mail Receipt, dated 9 November 2001
* Retiree Account Statement, effective 6 December 2001
* Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay memorandum, dated 9 April 2012
* State of Georgia, Amended Consent
* FSM’s death certificate


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 FSM entered military service as a Regular Army enlisted Soldier on 
27 June 1977 and he married the applicant on 31 July 1979.  He served continuously until his retirement for length of service on 30 June 1999.

3.  On 1 July 1999, he completed a DD Form 2656 (SBP Election), wherein he elected "spouse only" SBP coverage based on his full gross pay.

4.  In a Settlement Agreement, filed in the Superior Court of Liberty County, GA, and entered into on 19 June 2001 by the FSM, the applicant agreed that his former spouse would receive 50 percent of his monthly disposable retired pay and all cost of living adjustments applicable to his retirement pay.  This payment was not subject to any deductions elected by the parties for the SBP.

5.  On 11 October 2001, a Final Judgment and Decree was ordered and adjudged, dissolving the marriage between the applicant and the FSM.

6.  The FSM died on 4 April 2012.  The death certificate lists his marital status as divorced.

7.  On 9 April 2012, DFAS informed the applicant that in order to settle the FSM’s retired pay account they would need a copy of their divorce decree and the FSM’s death certificate.  In addition, the letter confirmed that SBP charges had been deducted from the retired pay as required by his original election at the time of retirement.

8.  Although the record is silent on the final decision in regards to the FSM’s retired pay, records provided by DFAS show that in a letter, dated 28 May 2012,

the applicant appealed the DFAS decision to deny her an SBP annuity.  She stated:

* the FSM specifically indicated in the divorce decree that he wished for his retirement pay to continue after death and SBP deductions would not be taken out of the 50 percent retired pay awarded to her
* that she and the FSM initiated SBP deductions in accordance with guidance provided to them in a DFAS letter, dated 19 November 2001
* SBP deductions have been made for over 10 consecutive years
* the documents she provided should be sufficient proof of her entitlement
* that in denying her annuity claim, DFAS went against the FSM’s wishes

9.  The applicant provides:

   a.  The FSM’s Retiree Account Statement, effective 6 December 2001, which shows the FSM’s retirement pay included deductions for "former spouse" and his deduction for spouse only SBP coverage.
   
   b.  A U.S. Postal Mail Receipt addressed to the Director, DFAS, received on 9 November 2001.
   
   c.  An Amended Consent Final Judgement and Decree, signed on 1 July 2013 which retroactively ordered SBP protection for the applicant upon the FSM’s retirement from the military, and designated the applicant as the "former spouse" beneficiary under the SBP.  Further, the FSM was required to make a timely election to effect the SBP coverage and execute the necessary paperwork. The level of SBP coverage was directed to be the same benefit payments after the FSM’s death that she was eligible to receive or was receiving before his death.

10.  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.

11.  Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.

12.  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 member was participating in the SBP or had not yet made an SBP election.

13.  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.

14.  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 that the records of the FSM be corrected to show she is entitled to SBP coverage.

2.  The evidence of record shows the applicant and the FSM were married on 31 July 1979 and divorced on 11 October 2001.  At the time of their divorce, the FSM had an SBP election in effect for spouse only coverage, based on the full amount of his retired pay.  Their divorce decree did not specifically indicate that the applicant would be the beneficiary of his SBP annuity, but did state that her portion of his retirement pay would not be subject to SBP deductions.  The settlement agreement was amended on 1 July 2013, after the FSM’s death, to designate the applicant as his former spouse beneficiary under SBP.

3.  The applicant contends that the deemed election she submitted was never processed; however, there is insufficient evidence to show the applicant submitted the necessary paperwork to establish a deemed former spouse SBP election within the prescribed time frame after her divorce nor is the original order sufficiently clear to establish the entitlement.

4.  The FSM’s death certificate indicates he was divorced at the time of his death. Records at DFAS indicate he continued to pay SBP spouse premiums for over a decade with the applicant clearly appearing on his Retiree Account Statement as his SBP beneficiary.  Therefore, there is sufficient evidence to show the FSM's intent was to change the SBP coverage from "spouse" to "former spouse" and to provide an annuity to the applicant.  Accordingly, his record should be corrected, as a matter of equity, to show he did so in a timely manner and that his request was received and processed by DFAS 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 he voluntarily changed his SBP coverage from "spouse" to "former spouse" on 1 November 2001
* showing his request was timely received and processed by the appropriate DFAS office
* paying the FSM's former spouse the SBP annuity retroactive to the day after the FSM's death




      _______ _   __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)                                         AR20150003201



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ABCMR Record of Proceedings (cont)                                         AR20150003201



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