RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 JUNE 2008
	DOCKET NUMBER:  AR20080001964 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, correction of his DD Form 2656 (Data for Payment of Retired Personnel) to show he elected former spouse Survivor Benefit Plan (SBP) coverage with his current spouse's concurrence.

2.  The applicant states, in effect, when he retired at age 60 and upon setting up his retirement pay, he noticed that no SBP payment was being deducted from his retired pay for former spouse SBP coverage.  He states it appears the Army Human Resources Command ignored a part of the court order (divorce decree) to elect former spouse SBP coverage.  

3.  The applicant provides two pages of his divorce decree and his Retiree Account Statement dated 2 December 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he was appointed as a Reserve Commissioned Officer of the United States Army in the rank of second lieutenant on 7 August 1969.  He entered the Regular Army on 26 September 1969 and was promoted to first lieutenant on 26 September 1970.  

2.  Subsequently, he was promoted to the rank of captain on 15 November  
1977 and to major on 1 February 1986.  He was honorably discharged from active duty on 1 June 1978 after completing 8 years, 4 months, and 6 days of Total Active Service.  His date of birth is 27 May 1947.

3.  U.S. Army Reserve Personnel Center Orders Number C-10-744200, dated  
27 October 1997, shows that the applicant was assigned to the Retired Reserve effective 27 October 1997.

4.  The applicant's notification of eligibility for retired pay at age 60 (known as his 20-year letter) is dated 28 May 1998.  There is no DD Form 1883 (SBP Election Certificate) in the applicant's available documents.  Therefore, he apparently deferred his SBP election until age 60.

5.  Item 5.2 of Article 5, Division of Community Property, of the applicant's divorce decree shows that he was separated from his former spouse on  
5 February 1999.  Item 5.2 D states that the applicant was to name his former spouse as beneficiary of her share of the community portion of any survivor benefits payable or available in the event of his death.

6.  The applicant's personnel record does not contain a copy of his complete divorce decree, nor did he submit one.

7.  The DD Form 2656, dated 5 February 2006, that the applicant submitted shows he remarried on 29 January 2001 to his current spouse and he made an election not to participate in SBP with spousal consent.  

8.  U.S. Army Human Resources Command Orders Number P05-785582, dated  
8 May 2007, shows he was retired as a lieutenant colonel and placed on the retired list on 27 May 2007. 

9.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  The USFSPA contains strict jurisdictional requirements.

10.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that although the language of the divorce decree was not entirely clear, it seemed to direct that the former spouse be designated as a beneficiary for SBP benefits payable or available in the event of the applicant's death.

2.  Nevertheless, when the applicant reached age 60 and applied for retired pay, he failed to make the election for former spouse SBP coverage as directed by the divorce decree.  It is reasonable to assume the applicant made an error by not designating his former spouse as a beneficiary for SBP coverage as directed by the divorce decree.  Instead, he elected not to participate in SBP with current spouse concurrence.  As result, no SBP payment was collected from his retired pay for his former spouse.

3.  There is no evidence his former spouse made a written request for a deemed SBP former spouse election within 1 year of their divorce.  Apparently, either he or his former spouse did provide a copy of the divorce decree to the Army Human Resources Command.  However, the SBP statute requires a specific request for SBP be submitted in writing; the divorce decree alone is not sufficient.

4.  Therefore, in the interest of justice it would be appropriate to correct the records to show that the applicant elected SBP coverage for his former spouse and his current spouse concurred with the SBP election made by him.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 the applicant elected SBP coverage for his former spouse and his spouse concurred with the SBP election made by him.  

2.  Specifically, the applicant’s DD Form 2656 should be corrected to show he elected former spouse coverage and his current spouse concurred.  The Defense Finance and Accounting Service will collect past SBP premiums due as a result of this correction.




      __________X____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001964



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508