RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 September 2005
DOCKET NUMBER: AR20040010119
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Ms. Wanda L. Waller | |Analyst |
The following members, a quorum, were present:
| |Mr. Stanley Kelley | |Chairperson |
| |Ms. Barbara Ellis | |Member |
| |Mr. Richard Dunbar | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his military records be corrected to show
he changed his Survivor Benefit Plan (SBP) coverage to former spouse
coverage.
2. The applicant states, in effect, the Defense Finance and Accounting
Service did not notify him of the one-year requirement to change his SBP
coverage to former spouse and that he received the final court order on 3
July 2004 in the mail. He contends his present situation could place him
in contempt of court.
3. The applicant's enclosures are outlined in his statement, dated 29
March 2005.
CONSIDERATION OF EVIDENCE:
1. The applicant married on 17 August 1968. He was commissioned as a
chaplain and entered active duty in 1975. The applicant enrolled in the
SBP on
9 July 1998 for spouse coverage, full base amount. The applicant retired
in the rank of colonel on 1 March 1999.
2. The applicant divorced on 26 November 2002. The divorce decree
indicates that the applicant's former spouse would be the beneficiary under
the SBP.
3. The applicant remarried on 24 January 2004.
4. The applicant provided copies of his Retiree Account Statements, which
show that SBP premiums were being deducted from his retired pay; however,
for some unknown reason, the deductions were stopped effective 1 April
2005.
5. On 15 August 2005, the applicant's spouse provided a notarized
statement concurring with the applicant's desire to change his SBP coverage
from spouse to former spouse.
6. 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.
7. 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.
8. Public Law 98-94, enacted 24 September 1983, established former spouse
coverage for retired members.
9. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of
the USFSPA relating to the SBP. It permits a person who, incident to a
proceeding of divorce, is required by court order to elect to provide an
annuity to a former spouse to make such an election. Any such election
must be written, signed by the person making the election, and received by
the Secretary concerned within one year after the date of the decree of
divorce. If that person fails or refuses to make such an election, section
1450(f)(3)(A) permits the former spouse concerned to make a written request
that such an election be deemed to have been made. 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 one year of
the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
It appears to be the applicant's intention to comply with the divorce
court's order to maintain his former spouse as his SBP beneficiary. The
applicant's spouse provided her concurrence with his decision to change his
SBP coverage to former spouse coverage. Therefore, it would be equitable
to show the applicant made a written request to change his SBP coverage to
former spouse coverage within the time frame provided by law.
BOARD VOTE:
SK_____ BE_____ RD______ GRANT 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 made a written request to change his SBP coverage to former
spouse coverage on 1 December 2002.
__Stanley Kelley______
CHAIRPERSON
INDEX
|CASE ID |AR20040010119 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20050901 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY | |
|ISSUES 1. |137.0000 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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