IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080001201 


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, a retired former service member, assisted by his friend who is a certified public accountant with power of attorney (POA) for him, requests that his military records be corrected to show that he established former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) for S____ K. M_______, his former spouse, who will simply be referred to as his former spouse through the remainder of these proceedings.

2.  The applicant essentially states that he erroneously listed his current wife to receive an annuity under the RCSBP when he filled out a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) in 2006.  However, he states that he had a court order as part of his divorce that prohibited anyone except his former spouse to be named and receive benefits under the RCSBP.  He also states that he had forgotten about the court order, and regrets that he incorrectly listed T_____ S. S________, who is his current spouse, on the DD Form 
2656-6, which he states went into effect on 15 August 2007.  He further states that he and his former spouse were married for 31 years, which included the entire time that he was on active duty, Reserve duty, and in the National Guard, and that she was always a supportive and proud Army wife, and believes that she deserves to receive half of his military retirement pay and to be elected for survivor benefits under the former spouse coverage.  Additionally, he states that even though their divorce contains court orders for this to happen, it is also what he desires, and he would appreciate the Army Board for Correction of Military Records (ABCMR) making the corrections as stated in his application. 


3.  The applicant provides the following in support of this application:

	a.  a statutory durable power of attorney, dated 25 October 2007, in which the applicant appointed Mr. G____ E______ as his POA, and which permits his POA to conduct estate, trust, and other beneficiary transactions as well as benefits from governmental programs or civil or military service on his behalf;

	b.  an unsigned self-authored letter, dated 4 October 2007;

	c.  a letter, dated 27 December 2007, from his former spouse to the Army Review Boards Agency;

	d.  a DD Form 2656-1 (Survivor Benefit Plan [SBP] Election Statement for Former Spouse Coverage), which was completed by his former spouse and his POA on 2 October 2007 and 19 December 2007, respectively;

	e.  a notarized letter, dated 4 October 2007, from his current spouse in which she relinquished all rights to any military retirement benefits or surviving spouse benefits of the applicant;

	f.  his divorce decree from his former spouse, dated 8 May 1998;

	g.  the Military Retirement Qualified Domestic Relations Order (QDRO), dated 8 May 1998, that was completed in conjunction with his divorce from his former spouse;

	h.  a letter, dated 13 April 1999, from the applicant's former spouse's attorney addressed to the Adjutant General's Department, P.O. Box 5218, Austin, Texas 78763-5218; and

	i.  A DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 24 June 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 23 May 1990, after having served in the Regular Army, Army Reserve, and at the time with the Texas Army National Guard, he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  



2.  On 24 June 1990, the applicant completed a DD Form 1883, and elected full spouse and children coverage, and elected Option C (Immediate coverage).  At the time, he was married to his former spouse.  This document also shows that the applicant and his former spouse were married on 24 November 1966.

3.  On 2 December 1990, the applicant was honorably discharged from the Texas Army National Guard and transferred to the United States Army Reserve Control Group (Retired Reserve).  

4.  The applicant provided a divorce decree which shows that he and his former spouse were divorced on 8 May 1998.  He also provided a QDRO, dated 8 May 1998, which essentially shows that he was ordered to immediately obtain, fully complete, sign, and return to the United States Army finance center all documents, papers, and forms necessary to provide former spouse SBP benefits for his former spouse, and simultaneously provide his former spouse copies of those documents, papers, and forms.

5.  There is no evidence which shows the applicant applied for former spouse SBP coverage for his former spouse within 1 year of their divorce.  There is also no evidence that the former spouse made a deemed election within 1 year of their divorce.

6.  The applicant's military records contained two DD Forms 2656-6, both dated 
4 August 2006.  These documents essentially show that the applicant suspended his SBP spouse and children coverage, and subsequently elected SBP spouse only coverage for T_____ S. S________, whom he married on 5 December 1998.

7.  The applicant essentially stated that he erroneously listed his current wife to receive an annuity under the RCSBP when he filled out a DD Form 2656-6 in 2006.  However, he stated that he had a court order as part of his divorce that prohibited anyone except his former spouse to be named and receive benefits under the RCSBP.  He also stated that he had forgotten about the court order, and regrets that he incorrectly listed T_____ S. S________, who is his current spouse, on the DD Form 2656-6, which he stated went into effect on 15 August 2007.  He further stated that his former spouse and he were married for 31 years, which included the entire time that he was on active duty, Reserve duty, and in the National Guard, and that she was always a supportive and proud Army wife, and believes that she deserves to receive half of his military retirement pay and to be elected for survivor benefits under the former spouse coverage.  Additionally, he stated that even though their divorce contains court orders for this to happen, it is also what he desires, and he would appreciate the ABCMR making the corrections as stated in his application. 
8.  The applicant provided a notarized letter, dated 4 October 2007, which was completed by the applicant’s current spouse.  This document essentially states that the applicant erroneously listed her to receive SBP benefits on a previous DD Form 2656-6, but at that time, the applicant had forgotten that he was not able to do so legally because of a court order as part of his prior divorce.  She also relinquished, in effect, all rights to any military retirement benefits or SBP benefits.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Spousal notification and concurrence are required only if the member elects to participate in the RCSBP for less than full spouse coverage.  A member must make the election within 
90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  Before spousal notification and concurrence were required, failure to elect an option resulted in the default election of option A. 

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.

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(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.
14.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  Based upon the language in the available QDRO it is clear that the applicant was ordered to enroll in the SBP for former spouse coverage.  Instead, the applicant failed to apply for former spouse SBP coverage for his former spouse within 1 year of their divorce.  There is also no evidence that the former spouse made a deemed election within 1 year of their divorce.  Instead, for whatever reason, he submitted two DD Form 2656-6 on 4 August 2006, with the first one suspending his SBP spouse and children coverage, and the other electing SBP spouse only coverage for his current spouse.

2.  Although the applicant failed to make a written request to convert his SBP to his former spouse, the evidence shows that an injustice occurred in this case, and that it would now be appropriate to correct the injustice done to the applicant's former spouse due to the applicant's failure to comply with the terms contained in their 1998 divorce settlement. 

3.  The applicant now asks for correction of his applicable records to show his former spouse as his SBP former spouse beneficiary.  As previously stated, the applicant failed to elect former spouse coverage under the SBP within 1 year of his divorce from his former spouse, as required by the SBP statute.  The applicant’s former spouse also failed to make a timely deemed former spouse beneficiary election, although her attorney attempted to do so.  

4.  However, on the basis of equity, it would be appropriate to correct the applicant's records to show that he made a timely SBP election for former spouse coverage for his former spouse.  This would comply with the court order to the protection and benefit of the applicant’s former spouse, although it would incidentally help the applicant as well.  Just as importantly, this relief would not violate any party’s rights or entitlements.  Specifically, granting relief would not infringe on any property entitlement of the applicant’s current spouse, as the applicant's current spouse relinquished all rights to any military retirement or SBP benefits in a notarized letter, dated 4 October 2007.
5.  In view of the foregoing, and on the basis of equity, it would be proper to correct the applicant’s military records as shown below.

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 showing that he made a timely SBP election for former spouse coverage which DFAS received, processed and implemented in a timely manner.




      _______ _  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)                                         AR20080001201



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ABCMR Record of Proceedings (cont)                                         AR20080001201



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