RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 April 2007
DOCKET NUMBER: AR20060012011
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.
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 correct to show he timely elected to change his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states, in effect, that this correction would keep his ex-wife from going on welfare and was part of the court order in their divorce. He also states that his children cannot take care of her when he dies. He failed to mail finance a copy of the court order within one year from the date of the divorce. He thought he had mailed it, but when he was going through his Army papers he found he had not mailed it. He received a statement from finance showing they had sent a payment of $2,811.39 to his bank. He took the SBP out when he first got separated from the Army and he is hoping on reinstatement.
3. The applicant provides copies of his retirement orders, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his discharge orders, and his divorce related documents, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he reenlisted in the Regular Army, in pay grade E-8, effective 7 December 1970, with prior enlisted service.
2. The applicant was separated for the purpose of retirement and was transferred to the Retired Reserve, in pay grade E-8, on 30 June 1972. He was credited with 22 years, 7 months, and 6 days total active service.
3. The applicant was honorably discharged from the Retired Reserve on 3 June 1993.
4. The applicant provides a copy of his complaint petitioning for divorce, which shows the applicant and his former spouse were married on 28 November 1959. The settlement agreement, incorporated into the divorce decree indicates that the applicant agreed to elect former spouse coverage under the SBP. Although the applicant did not provide a copy of the final divorce decree, it can be inferred the court issued it's decree sometime after 21 May 2004, in accordance with the applicant's and his then spouse's mutual consent to trial without jury to occur anytime after 21 May 2004. The applicant gives the date of 2 June 2004[sic] on his DD Form 149 (Application for Correction of Military Record), which appears likely to be the date of final divorce.
5. The Defense Finance and Accounting Service (DFAS), Retired Pay Branch, verified that the applicant had elected SBP spousal coverage at the time of his retirement. In 2006, the applicant notified DFAS of his divorce and of his election to continue the SBP coverage for his former spouse.
6. On 23 April 2007, the applicant verified that his final date of divorce was 29 June 2004 and he has not remarried.
7. Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.
8. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouses behalf, provided the member agreed to provide coverage.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected SBP spousal coverage at the time of his retirement, 30 June 1972. The applicant and the former spouse married on 28 November 1959 and divorced on 29 June 2004. The settlement agreement indicates that the applicant agreed to provide the SBP to his former spouse.
2. At the time of his retirement, the applicant elected SBP coverage participation for his spouse. As part of the divorce settlement agreement, the applicant was required to elect SBP coverage for his former spouse; however, the applicant did not notify DFAS within one year of the divorce of his election for former spouse coverage, as required by the SBP statute. His former spouse also did not make a deemed election within the one year.
3. Based upon the SBP award in the settlement agreement, the applicant's desire to comply with it, and there being no eligible spouse beneficiary, the applicant's SBP beneficiary should be changed to former spouse beneficiary.
BOARD VOTE:
__D_____ __WDP__ __WFC _ 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 to show the applicant elected his Survivor Benefit Plan coverage be changed from spouse to former spouse beneficiary on 29 June 2004.
_____William D. Powers___
CHAIRPERSON
INDEX
CASE ID
AR20060012011
SUFFIX
RECON
DATE BOARDED
20070426
TYPE OF DISCHARGE
DATE OF DISCHARGE
19720630
DISCHARGE AUTHORITY
Retired after 20 yrs but less than 30 years
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137.00
2.
3.
4.
5.
6.
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