RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060011415 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann

Member

Mr. Gerald J. Purcell

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, in effect, that his records be corrected to show he changed his Survivor Benefit Plan (SBP) election from former spouse to spouse coverage.

2.  The applicant states, in effect, that he remarried on 17 March 2006 and submitted a request to change his SBP election from former spouse to spouse coverage.  He also states, in effect, that an official at the Defense Finance and Accounting Service (DFAS) in London, Kentucky, informed him that he could not change his SBP coverage because it was in his divorce decree that he provide SBP coverage for his former spouse and she also submitted a letter to the DFAS making a "deemed" election of former spouse SBP coverage.  The applicant further states, in effect, that he contacted his former spouse and she told him she had not contacted DFAS regarding SBP benefits.  The applicant states, in effect, that given his particular situation, he is not aware of any law or regulation that precludes him from changing his SBP election from former spouse to spouse.

3.  The applicant provides two self-authored letters, dated 1 August 2006 and
28 August 2006; Circuit Court of Boone County, Missouri, Decree of Dissolution of Marriage, Case Number 29MAR84 313338; State of Missouri, Marriage License, dated 17 March 2006; and DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 29 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's date of birth is 17 December 1930.  He and his former spouse (Jane C____ H____) were married on 11 January 1953.

2.  The applicant enlisted and entered active duty in the U.S. Army on 15 January 1953, was honorably released from active duty on 14 January 1955, and was transferred to the U.S. Army Reserve (USAR).  On 3 August 1959, he was appointed as a commissioned officer in the rank of first lieutenant and served in the USAR as a nurse anesthetist.  On 25 July 1988, the applicant was assigned to the USAR Control Group (Retired) in the rank of colonel with 20 or more creditable years of service for retirement.

3.  The applicant's military service records contain a copy of State of Missouri, County of Boone, Notice of Entry of Order or Judgment (To Be Given By Clerk To All Parties Not In Default Who Are Not Present In Open Court When Order Or Judgment Is Entered), dated 13 March 1986, with attachment.  These documents show, in pertinent part, that the marriage between the applicant, Thomas C__ H____, and Jane C_____ H____ was ordered dissolved on 13 March 1986.  The attachment shows, in pertinent part, that Jane C______ H____ was awarded one-half of the applicant's military pension.

4.  The applicant's military service records contain a copy of a State of Missouri, County of Boone, Marriage License.  This document shows that the applicant and Amanda Marie P_____ were married on 30 May 1986.  The applicant's records are absent any documentation regarding their divorce.

5.  In the processing of this case, an analyst from the DFAS provided a copy of the applicant's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 1 October 1990, submitted in advance of the applicant's eligibility to receive retired pay, effective 17 December 1990.  This document shows, in pertinent part, that the applicant indicated he was single and that he designated Jane C_____ H____, his former spouse, beneficiary for unpaid retired pay.  This document also shows in Part III (Survivor Benefit Plan Election) of the DA Form 4240 that the applicant indicated in Item 10 that he was not married and in Item 11 that he did not have dependent children.  Item 12 (Check one of the following to indicate the type of coverage you desire) shows for item a (Spouse only) the typed entry "Ex-spouse"; however, the corresponding box is not marked.  Item
13 shows that an "x" was placed in the box indicating full coverage and Item
14 shows that the applicant entered personal information pertaining to his former spouse, Jane C_____ H____.  The applicant and counselor (or another witness) each affixed their signatures in Part VI (Certification) of the DA Form 4240.

6.  The applicant provides a copy of the Decree of Dissolution of Marriage, which states that the marriage between him and Jane C_____ H____ was ordered dissolved on 13 March 1986.  This document also shows, in pertinent part, that Jane C______ H____ was awarded one-half of the applicant's military pension, all of which was earned and accumulated during their period of marriage.  However, the court order is absent any reference to the applicant providing an SBP annuity to his former spouse.

7.  On 17 March 2006, the applicant married his current spouse.  On 29 March 2006, he submitted a DD Form 2656-6 requesting a change in SBP coverage based on his remarriage.  In this SBP election form, the applicant shows his current coverage as former spouse and requests a change in coverage based on remarriage.  The applicant failed to indicate in Item 9 of the form the change to the coverage that he was requesting (i.e., spouse only); however, he did indicate the level of requested coverage was based on his full retired pay.  The DD Form 2656-6 also shows, in pertinent part, in Item 8 (I Am Requesting a Change in Coverage Based On), Remarriage portion, that the following additional option is available for members who have former spouse coverage, who remarry and the member is allowed to discontinue that coverage.  It provides, in pertinent part,
"(4) Select coverage for my new spouse if my current coverage is former spouse coverage (Complete Section IV)."

8.  In the processing of this case, an electronic message (email) was sent to the applicant on 4 April 2007 (to the email address he provided in his application) requesting additional documentation to clarify whether or not a separate SBP agreement existed between the applicant and his former spouse.  To date, the applicant has failed to acknowledge receipt of the email message or provide any additional documentation.

9.  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.

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.  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 after the date of the decree of divorce, dissolution, or annulment.

13.  Title 10, U. S. Code, section 1450(f), "Change in Election of Insurable Interest or Former Spouse Beneficiary," sets forth the circumstances when a retiree who originally elected to provide either insurable interest or former spouse coverage may elect to change that coverage to spouse or child beneficiary.  Subparagraph 1450(f)(2)(A) requires that when a retiree's divorce decree (or a written agreement incorporated into the divorce decree) required him to elect an SBP former spouse beneficiary, before he may later change this mandatory election, he must obtain from a court with proper jurisdiction over the matter an order modifying the original decree by releasing him from this requirement.

14.  Subparagraph 1450(f)(2)(B) requires that if there was a written agreement between the retiree and his former spouse, not incorporated into the divorce decree, that required the retiree to elect the former spouse his SBP beneficiary, then the retiree must provide a written statement signed by the former spouse agreeing to the desired change in election from former spouse beneficiary to spouse or child beneficiary.  The retiree must certify that the former spouse's statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he changed his SBP coverage from former spouse to spouse coverage because his divorce decree does not bind him to retain SBP former spouse coverage.

2.  The evidence of record shows that the applicant initially elected SBP former spouse coverage based on the full amount of his retired pay; however, there is no evidence that shows the applicant was required by court order to provide an SBP annuity to his former spouse.  In addition, there is no evidence of record to show that the applicant's former spouse made an attempted deemed election to DFAS for former spouse SBP coverage, although she was not entitled to make such an election based on the divorce decree.

3.  The evidence of record indicates the applicant remarried on 30 May 1986; however, there is no available evidence pertaining to the applicant's divorce from his second spouse.  In the absence of documentary evidence to the contrary, it is presumed that the applicant legally divorced his second spouse.  In addition, in the absence of a court order to provide an SBP annuity to this former (second) spouse and any evidence of record to show that the applicant's former (second) spouse made an attempted deemed election to DFAS for former spouse SBP coverage, it is presumed the applicant's former (second) spouse is not entitled to an SBP annuity.

4.  The evidence of record indicates that while the applicant was unmarried, he paid SBP premiums for former spouse coverage.  The evidence of record also shows that the applicant requested that his SBP coverage be changed from former spouse to spouse coverage 12 days after his marriage to his current spouse.

5.  However, the evidence offered by the applicant, along with that found in his military service records, is insufficient to rule out the possibility that there existed a contractual agreement between the applicant and his former (first) spouse, one that required him to elect her as his SBP former spouse beneficiary.  While the available evidence indicates that it is unlikely there was such an agreement, there is some evidence to indicate there may have been such an agreement. Specifically, the evidence of record shows that when the applicant contacted the DFAS the second time, a DFAS official told him that his former spouse had, in effect, made a deemed former spouse election.  Although unlikely, it is possible that his former spouse made this election based on a written agreement in effect between her and the applicant.  The applicant's statement indicating that when he contacted his former spouse, she told him that she had not communicated with DFAS regarding SBP issues is noted.  While the veracity of the applicant's statement is not in question, it is not equivalent to a sworn statement from the former spouse.

6.  In the processing of this case a statement from the former spouse regarding any SBP agreement was requested from the applicant; however, he has failed to respond to this request.  Therefore, in order to protect the interest of the former spouse and avoid inadvertently taking property (i.e., SBP coverage) from her without due process of law, the applicant is not entitled to correction of his records to show spouse SBP coverage at this time.

7.  The applicant is again advised to obtain a written statement from his former spouse, both signed and notarized, clarifying that there was never any agreement between her and the applicant, either set forth in their divorce decree or in a separate agreement, requiring the applicant to elect her as the SBP former spouse beneficiary.  In this statement she must also acknowledge that her SPB coverage as former spouse was completely voluntary upon the applicant's part and that he is free to change that election at will.  Upon obtaining said statement, the applicant must certify that the former spouse's statement is current and in effect.  The applicant is then encouraged to submit the statements, along with a request for reconsideration of his application.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEV__  ___PHM_  ___GJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




______James E. Vick______
          CHAIRPERSON



INDEX

CASE ID
AR20060011415
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19880725
DISCHARGE AUTHORITY
AR 140-10, Paragraph 6-2
DISCHARGE REASON
20 or More Creditable Years of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.