IN THE CASE OF: BOARD DATE: 11 August 2011 DOCKET NUMBER: AR20200008917 APPLICANT REQUESTS: correction of the military records to show her entitlement to a portion of her husband's retired pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Letter * Marriage Certificate FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states a. Her husband [Name and SSN of Retired Service member] has denied her retirement benefits since August 1997. He left with their son back to America from Germany in July 1997 and she was supposed to follow on after he had surgery and turned in their living quarters. In the interim, he failed to send her a ticket and moved from a known address to an unknown address and informed her that he wanted a separation. He cut off her financial support and kept her from her son. She asked the U.S. Military and the German Government for assistance, but she didn't really receive any support. She has hired three attorneys over the years trying to get her retirement benefits and reciprocity for his shameless act. b. She married [Name of Service member] on 11 October 1985 in Augsburg, Germany when he was stationed there. Their son W__ Jr. was born soon after on October X, 19XX. Their duty stations over the years included Augsburg, Fort Campbell, Stuttgart, Vicenza - Italy and Hohenfels-Germany and terminated in Pensacola, Florida where he retired. The last known address for [Service member] was [Address in A. c. It has been a hardship over the past years as she factored in their retirement pay as a stabilizing source to subsist and live on. She currently works for the U.S. Army - LRC Bavaria- at the Hohenfels Dining Facility and she is struggling to maintain a decent lifestyle. She claims fraud and abandonment from her husband and she is asking the Army Board of Corrections to rectify this situation. She would like to be recognized for her commitment, loyalty and contribution to the Army Family and the Army way of life. 3. Review of the retired service member's records shows: a. He enlisted in the Regular Army on 20 January 1976. He served through multiple reenlistments in a variety of stateside or overseas assignments. b. He and the applicant were married on 10 November 1985. c. On 6 November 1996, Headquarters, U.S. Army Europe published orders authorizing him retirement effective 1 August 1997. His orders authorized travel from Germany of his spouse (the applicant) and their son. d. On 26 February 1997, as he neared retirement, the retired service member completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to the applicant as of 11 October 1985 and they had a child born on 5__ 19XX. * The retired service member declined participation in the SBP and signed his name * His spouse (the applicant) concurred with the election made by him * A witness signed her name on the same date * The election was transmitted to the Defense Finance and Accounting Service e. He retired on 31 July 1997 and was placed on the retired list in his retired grade of sergeant first class/E-7 on 1 August 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 21 years, 6 months, and 14 days of active service. 3. It is unclear if the retired service member and applicant are divorced. There is no indication in the service record and the applicant did not provide supporting documents to show if they were divorced and what stipulations their divorce decree provided. 4. There is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. * First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. * Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA 5. In order to apply for direct payments under the USFSPA, a former spouse must submit a completed Application for Former Spouse Payments from Retired Pay (DD Form 2293), and a copy of the pertinent court order stating the former spouse’s award or awards that has been certified by the clerk of court. In order to complete the application, the former spouse may have to submit additional documentation for DFAS to determine whether all requirements, such as 10/10 or jurisdiction, were met. The application must be sent to Garnishment Law Directorate at the Defense Finance Accounting Service (DFAS). The application may be faxed to 877-622-5930 (toll-free) or sent by regular mail to: * DFAS-HGA/CL * Assistant General Counsel for Garnishment Law Directorate * P.O. Box 998002 * Cleveland, OH 44199-8002. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board reviewed the applicant's request but could not understand what is being asked. If the applicant is inquiring about a portion of her former husband's retired pay, the Board recommends the applicant first seek relief through State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. If the applicant is inquiring about the SBP, the Board noted that as he neared retirement, the retired service member declined participation in the SBP and his spouse (the applicant) concurred with the election made by him. The Board found insufficient evidence to support the applicant's request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XXT: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 1408, passed in 1981, the Uniformed Services Former Spouses’ Protection Act (USFSPA), accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA. a. The USFSPA also provides for the enforcement of court-ordered current alimony, current child support and child support arrears. Additionally, in order to apply for child support arrears, a former spouse must submit a court order awarding the arrears that was issued within the last two years. This requirement is in addition to the application requirements. Alimony arrears cannot be collected under the USFSPA. The maximum amount that can be collected for USFSPA payments is 50 percent. b. In addition to the USFSPA application, a former spouse can also submit an income withholding order under Title 42 of the U.S. Code Section 659 (42 U.S.C. § 659) to enforce current child support, alimony, as well as child support and alimony arrears orders. Cases that are paying under both the USFSPA and 42 U.S.C. § 659 (income withholding order) will pay up to 65 percent of the member’s disposable income. c. In order to apply for direct payments under the USFSPA, a former spouse must submit a completed Application for Former Spouse Payments from Retired Pay (DD Form 2293), and a copy of the pertinent court order stating the former spouse’s award or awards that has been certified by the clerk of court. A photocopy of the certified order is acceptable. In order to complete the application, the former spouse may have to submit additional documentation for DFAS to determine whether all requirements, such as 10/10 or jurisdiction, were met. The application must be sent to Garnishment Law Directorate at the Defense Finance Accounting Service (DFAS). The application may be faxed to 877-622-5930 (toll-free) or sent by regular mail to: DFAS-HGA/CL, Assistant General Counsel for Garnishment Law Directorate, P.O. Box 998002, Cleveland, OH 44199-8002. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008917 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1