RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070013793 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

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 the records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.

2.  The applicant states that the property settlement agreement and the final divorce decree provided that she would receive the SBP.

3.  The applicant provides the final decree of divorce and the property settlement and separation agreement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that the FSM was to have elected the applicant for former spouse SBP coverage.  

2.  Counsel provides a notarized statement from the FSM’s current spouse.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the Regular Army on 3 February 1965.  He and the applicant married on 20 September 1983.  

3.  The FSM retired on 1 March 1987.  He elected to enroll in the SBP for spouse and children coverage, reduced base amount.  

4.  The FSM and the applicant divorced on 3 December 2001.  The property settlement and separation agreement, which was incorporated into the final divorce decree, stated the FSM agreed that he would irrevocably elect and designate the applicant as his SBP beneficiary.  
5.  The FSM remarried on an unknown date.  On 14 February 2008, the FSM’s current spouse irrevocably waived her property rights to the SBP.

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), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  

8.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

9.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s 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.

10.  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.

11.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  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:

1.  When the FSM retired, he elected to participate in the SBP for spouse and children coverage, reduced base amount.

2.  The FSM and the applicant divorced in December 2001.  The property settlement and separation agreement stated the FSM agreed that he would irrevocably elect and designate the applicant as his SBP beneficiary.  It appears that neither the FSM nor the applicant took the steps required to change his SBP coverage to former spouse coverage within the one-year time period required by law.  Upon the first anniversary of the FSM’s remarriage, his new spouse became/will become the legal beneficiary of his SBP.

3.  However, the FSM’s current spouse has voluntarily waived her property rights to the SBP.  Therefore, it would be equitable to correct the FSM’s records to show he complied with the property settlement and separation agreement and timely changed his SBP coverage to former spouse and children coverage.

BOARD VOTE:

__le____  __jrs___  __lwr___  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 1 January 2002 the FSM made a written request to change his SBP coverage to former spouse and children coverage and that his request was received by the appropriate office and processed in a timely manner.




__Lester Echols_______
          CHAIRPERSON




INDEX

CASE ID
AR20070013793
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
137.04
2.

3.

4.

5.

6.