IN THE CASE OF:	  

	BOARD DATE:	  24 June 2008

	DOCKET NUMBER:  AR20070018891 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the beneficiary of his Survivor Benefit Program (SBP) benefits be changed from his current former spouse to his previous or first former spouse. 

2.  The applicant states that he was only married to his current former spouse for 6 years and that he had married her after he retired.  However, he was married to his first former spouse for 25 years, of which 15 years were during his active duty service.  He goes on to state that he divorced her in 1979, before the Uniformed Service Former Spouse Protection Act (USFSPA) was enacted.  He further states that in the interest of fairness to his first former spouse, she should receive his SBP benefits. 

3.  The applicant provides a copy of his DD Form 214, a copy of his SBP Former Spouse Election Form (DFAS-IN Form 20-237), a copy of his SBP Election Change (DFAS-IN Form 20-238), a copy of his divorce decree from his first spouse and a copy of his marriage license and divorce decree from his second 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 applicant enlisted in the Regular Army on 3 December 1948 and married his first spouse in Japan on 23 September 1953.  He continued to serve through a series of continuous reenlistments and was promoted to the pay grade of E-8 on 23 September 1965.

3.  On 31 December 1968, he was honorably released from active duty at Oakland Army Base, California upon return from Vietnam and was transferred to the Retired List effective 1 January 1969, due to completion of sufficient service for retirement.  He had served 20 years and 29 days of total active service.  

4.  The applicant’s spouse divorced the applicant in the State of Nevada on 22 January 1979.  

5.  The applicant married his second spouse in Kentucky on 13 June 1987 and divorced her in Nevada on 15 June 1993.   

6.  On 6 September 1994, the applicant completed an SBP Election Change (DFAS-IN Form 20-238) in which he designated his SBP benefit coverage be changed from spouse to former spouse and he named his last spouse as his former spouse.  His last former spouse also authenticated the form.

7.  The applicant also completed a SBP Election Statement for Former Spouse Coverage in which he indicated that his election was voluntary.  Both the applicant and his last former spouse authenticated the form. 

8.  In the processing of this case a staff member contacted DFAS officials to determine who was recorded as the beneficiary of the applicant’s SBP benefits.  Officials at the DFAS indicate that the applicant’s last former spouse, whom he divorced in June 1993, is listed as the beneficiary and former spouse.

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.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

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 former spouse coverage for retired members (Reservists, too).

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 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless, of the following requirements, whichever are applicable in a particular case are satisfied:

	(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person:

		(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

		(ii) certifies to the Secretary concerned that the court order is valid and in effect; or

	(B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

		(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

		(ii) certifies to the Secretary concerned that the statement is current and in effect.


DISCUSSION AND CONCLUSIONS:

1.  The applicant made an irrevocable election for former spouse coverage when he completed the election change forms and named his last former spouse as his SBP beneficiary.  

2.  It appears that since there were no provisions contained in the divorce degree directing that the applicant provide SBP benefits to his former spouse that his election was voluntary.  The law provides that when an election of former spouse coverage is voluntary, that election may be changed when the member furnishes a statement signed by the former spouse that evidences the former spouse’s agreement to a change in the election.   

3.  However, the applicant did not provide a statement from his former spouse to show that she agrees with his request to change his former spouse SBP coverage to his first former spouse (or a death certificate to show his former spouse is no longer a beneficiary).  Regrettably, at this time there is insufficient evidence on which to grant the relief requested.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.              

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070018891



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ABCMR Record of Proceedings (cont)                                         AR20070018891



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