RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070014991 


	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.


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

2.  The applicant states that the court ordered the FSM to submit documentation to irrevocably designate her as his beneficiary under the SBP.  The applicant states, in effect, the FSM did not submit the SBP documentation until 7 June 2006.  She alleges that the FSM was ordered by the court in 1993 to submit SBP documentation within 30 days of the divorce.  The applicant states that her financial security would be compromised without the SBP.  She and the FSM were married for 25 years and she feels it is fair to ask for aid in her security for the future.  She states, in effect, the SBP was part of the divorce settlement.  

3.  The applicant provides a copy of a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage); her and the FSM’s Record of Divorce; and her and the FSM’s divorce decree.  

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 1 October 1944.  He and the applicant were married on 18 May 1968.  After having had prior service, the FSM was appointed as a Chief Warrant Officer Two (CW2) in the Army National Guard on 30 May 1974.  

2.  The FSM's notification of eligibility to receive retired pay at age 60 (20-Year Letter) is dated 1 March 1985.  There is no evidence of record which indicated he elected to enroll in the RCSBP at that time.  

3.  He was promoted to Chief Warrant Officer Four (CW4) on 11 June 1986.

4.  The FSM and the applicant were divorced on 27 July 1993.  The divorce decree states, in part, “The Defendant shall irrevocably designate the Plaintiff as his beneficiary under the Survivor’s Benefit Plan (SBP), available through the Army/National Guard.  He shall provide proof of such designation within 30 days of the date of this decree.”  

5.  The FSM reached age 60 on 1 October 2004.

6.  The FSM was separated from the Army National Guard on 30 April 2006 and he was assigned to the Retired Reserve on 1 May 2006 in the rank of CW4.

7.  On 25 April 2006, the FSM submitted a DD Form 2656 (Data for Payment of Retired Personnel) and elected not to participate in the SBP.  This form indicates his marital status as single.  

8.  On 7 June 2006, the FSM submitted a DD Form 2656-1 and elected to enroll in the SBP for former spouse coverage due to his divorce.  The FSM placed an 
“X” under “Yes” indicating this election was being made pursuant to the requirements of a court order.  

9.  The FSM provided a statement, dated 18 June 2006, in which he acknowledged receipt of the completed copy of the DD Form 2656-1 and the change to paragraph 4 in reference to the Court Order.

10.  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.  Elections are made by category, not by name.

11.  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.

12.  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.

13.  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.

14.  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.  The FSM received his notification of eligibility for Reserve retirement benefits at age 60 on 1 March 1985.  He was married to the applicant at that time; however, there is no evidence of record which indicates he elected to enroll in the RCSBP at that time.

2.  The FSM and the applicant were divorced on 27 July 1993.  The divorce decree indicated that the FSM would irrevocably designate the applicant as his beneficiary under the SBP which was available through the Army National Guard. 

3.  The evidence of record shows the FSM applied for retired pay on 25 April 2006 and elected not to participate in the SBP at that time.  

4.  The FSM retired on 1 May 2006.  The evidence of record shows the FSM voluntarily submitted an SBP Election Statement for Former Spouse Coverage on 7 June 2006 electing SBP for former spouse coverage.

5.  Considering there is evidence to show it was the FSM’s intent to provide SBP coverage for his former spouse, it would be equitable to correct his records to show he enrolled in the SBP for former spouse coverage within the time frame provided by law.

BOARD VOTE:

x______ x_____ x_____  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 





changing the FSM’s DD Form 2656 to show he enrolled in the SBP for former 
spouse coverage and that his request was received and processed by the appropriate office in a timely manner.




x________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

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

ISSUES         1.

2.

3.

4.

5.

6.