RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 September 2007
DOCKET NUMBER: AR20070005029
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Mr. Richard T. Dunbar
Chairperson
Mr. Chester A. Damian
Member
Mr. Edward Montgomery
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 former spouse be reinstated as his beneficiary under the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that neither he nor his former spouse knew that the Defense Finance and Accounting Service (DFAS) had to be notified of their divorce. When he discovered this reading Army Echoes he began to try to correct it. He tried to fix the problem with correspondence to DFAS but they ignored his requests and had removed his former spouse as beneficiary.
3. The applicant provides a two-page letter from his attorney, dated 24 August 2007; an 11-page State of Alabama County of Morgan Agreement, dated
3 December 1998; a two-page Circuit Court of Morgan County, Alabama, Final Judgment, dated 3 December 1998; a 23-page Prenuptial Agreement, dated
29 April 2004; and an Alabama Certificate of Marriage, dated 28 May 2004.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 16 December 1965, the applicant was appointed as a Reserve Commissioned Officer of the Army and entered active duty on 18 March 1966. He married on an unknown date.
3. On 22 March 1993, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he elected full spouse SBP and children coverage.
4. The applicant retired on 31 March 1993.
5. On 3 December 1998, he divorced. The divorce marriage settlement agreement that was incorporated into the decree stated in pertinent part that "wife shall have and shall remain the beneficiary and the annuitant of Husband's Survivor Benefit Plan (SBP) provided through his retirement from the United States Army. Husband will pay monthly premiums required to main (sic) this program."
6. In a Prenuptial Agreement, dated 29 April 2004, the applicant's current spouse irrevocably waived her right to the SBP with no qualifications.
7. On 28 May 2004, the applicant remarried.
8. An undated letter addressed to DFAS shows that the applicant informed DFAS that he was not aware that he or his former spouse were supposed to notify them within one year of their divorce and that she was to remain beneficiary to his SBP. He requested that DFAS correct his records to show the former spouse coverage.
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), dated 8 September 1982, established SBP coverage for former spouses of retiring members.
11. Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of 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 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 one 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.
DISCUSSION AND CONCLUSIONS:
1. Neither the applicant nor the former spouse requested that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one-year time limit. However, the applicant continued to pay premiums after their divorce. It appears that it was always his intention to comply with the courts order.
2. In the applicant's Prenuptial Agreement, dated 29 April 2004, his current spouse irrevocably waived her right to the SBP with no qualifications. It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse and children coverage in a timely manner.
BOARD VOTE:
__RTD__ __CAD __ __EM ___ 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 that, on 4 December 1998, he made a written request to change his SBP coverage to former spouse and children coverage and his request was received and processed by the appropriate officials in a timely manner.
___Richard T. Dunbar__
CHAIRPERSON
INDEX
CASE ID
AR20070005029
SUFFIX
RECON
DATE BOARDED
27 SEPTEMBER 2007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
MR. SHATZER
ISSUES 1.
137.0200.0000
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