RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 November 2007
DOCKET NUMBER: AR20070005367
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 L. Engle
Analyst
The following members, a quorum, were present:
Mr. Eric N. Andersen
Chairperson
Mr. Donald L. Lewy
Member
Ms. Rea M. Nuppenau
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 election of spouse coverage under the Survivor Benefit Plan (SBP) be changed to former spouse coverage.
2. The applicant states, in effect, that neither he nor his former spouse informed the Defense Finance and Accounting Service (DFAS) of their divorce. On discovery of their oversight, they sent DFAS four signed statements requesting SBP be retained for the former spouse. However, DFAS cancelled the applicant's SBP and refunded an SBP credit. The applicant further states that he had paid SBP premiums since 29 September 1982
3. The applicant provides copies of his letter to DFAS dated 29 April 2005; divorce decree, retired pay statements for October 1982 and 14 July 2005.
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 1 August 1974, the applicant retired from the Regular Army in the rank of lieutenant colonel (pay grade O-5) with 20 years, 1 month, and 13 days of active duty service.
3. The applicant's retired pay statement for October 1982 shows that he made an open season SBP election.
4. On 5 August 2003, the applicant was divorced. The divorce decree does not contain any discussion regarding the applicant's SBP.
5. On 29 April 2005, the applicant and his former spouse notified DFAS by letter of their divorce. It further stated that the applicant desired to retain SBP coverage and that his former spouse remain the beneficiary. The former spouse concurred with this desire. Both individuals signed the letter.
6. On 14 July 2005, DFAS issued the applicant a Retiree Account Statement providing him with an SBP refund in the amount of $3,107.56.
7. There is no available evidence showing that the applicant has remarried.
8. 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.
9. 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.
10. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
11. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. 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. Section 1448 (b)(3)(a) provides that the parties may elect by agreement to change the coverage to former spouse.
DISCUSSION AND CONCLUSIONS:
1. The applicant was divorced on 5 August 2003. While the divorce decree does not require the applicant to provide SBP to his former spouse, it is his desire to do so. Furthermore, the former spouse also desires to remain the beneficiary of his SBP.
2. There is no evidence showing that the applicant has remarried.
3. Therefore, it would be appropriate to correct the applicant's records to show that he timely elected to participate in SBP for former spouse coverage.
BOARD VOTE:
___RMN _ __DLL __ __ENA 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:
a. showing he completed an election, in a timely manner within a year of his divorce, to participate in the SBP for former spouse coverage; and
b. requiring that the applicant restore all refunded SBP premiums to DFAS and pay any additional premiums due as a result of this correction.
___ Eric N. Andersen _
CHAIRPERSON
INDEX
CASE ID
AR20070005367
SUFFIX
RECON
DATE BOARDED
20071120
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . . . .
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
ISSUES 1.
137.04
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