IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080002215 


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 his military records be corrected to show that he established former spouse coverage under the Survivor Benefit Plan (SBP) for  his former spouse within the 1-year period required by his divorce decree.

2.  The applicant states, in effect, that he was divorced on 7 April 2005 and in February 2006, he submitted his DD Form 2656-1 (Survivor Benefit Plan Election Statement for Former Spouse Coverage) along with his divorce decree to the DFAS.  He goes on to state that premiums continued to be deducted from his Retired Pay until November 2007 and he then contacted Defense Finance and Accounting Service (DFAS) and was informed that he had not submitted the proper paperwork to designate his former spouse as his SBP beneficiary.  He continues by stating that it took almost 2 years for DFAS to notify him that he was no longer in the SBP; however, his court decree requires him to maintain his former spouse as his beneficiary and he did what he was required to do under that order. 

3.  The applicant provides a letter of explanation; a copy of his divorce decree; a copy of his enrollment in SBP (spouse and children option) dated 20 April 1992, under the Open Enrollment Election; a copy of his inquiry to DFAS; a copy of the response from DFAS dated 18 December 2007, a copy of his DD Form 2656-1; and a copy of his January 2008 Retiree Account Statement. 




CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 29 December 1959 and served until he was honorably discharged on 21 June 1968.  He again enlisted on 10 May 1971 and served through a series of continuous reenlistments.  He was promoted to the rank of sergeant major (E-9) on 16 November 1987 and remained on active duty until he was honorably released from active duty on 30 November 1988 and was transferred to the Retired List in the pay grade of   E-9 on 1 December 1988.  He had served 26 years and 14 days of total active service.  At the time of his retirement, he had been granted an exception to policy to retire before completing his service remaining obligation for promotion due to the terminal illness of his spouse.  He completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in October 1988 and elected SBP child only coverage.

2.  The applicant remarried on 4 May 1989. On 20 April 1992, he enrolled in the SBP under the spouse and child option during open season, in effect adding spouse coverage.   

3.  The applicant was divorced on 7 April 2005 and as part of the post-marital agreement the applicant was responsible for ensuring that his ex-wife retained beneficiary status on his SBP, with the cost being split between them.  The applicant was required to submit the necessary paperwork to the DFAS within 1 year of the date of divorce.  

4.  The DD Form 2656-1 submitted by the applicant shows that his spouse completed the form to change his SBP election to former spouse on 21 February 2006.

5.  On 14 December 2007, the applicant dispatched a letter to the DFAS in London, Kentucky, requesting to know why his SBP for former spouse was stopped in November 2007, when he had been paying the premiums since April 2005.

6.  On 18 December 2007, officials at the DFAS responded to his inquiry and informed the applicant that a voluntary election and a complete copy of the final decree had not been received within 1 year of the divorce and therefore SBP former spouse coverage could not be initiated.

7.  In the processing of this case a staff member of the Board contacted the applicant on 19 June 2008 to ascertain if the applicant had remarried.  The applicant informed the staff member that he remarried 8 months ago and the  staff member informed the applicant that his new spouse would be the beneficiary of his SBP unless she waived her right to SBP in favor of the former spouse.  The applicant informed the staff member that he would have his current wife waive her SBP rights and provide the Board with a statement to that effect.  A notarized statement from his current wife waiving her right to the applicant’s SBP was received by the staff of the Board on 25 June 2008. 

8.  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.

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.  

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

11.  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.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  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.  

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.  Although there is no evidence to show when the applicant actually dispatched the SBP Election Statement for Former Spouse Coverage (DD Form 2656-1) to the DFAS, it is reasonable to presume that he did it shortly after his ex-wife authenticated the form in February 2006.   

2.  It is also reasonable to presume that the applicant was attempting to comply with the marital settlement agreement within the time-frame prescribed by the Divorce Decree by completing the form and naming his ex-wife (former spouse) the beneficiary of his SBP annuity.  

3.  It appears that the change of election made by the applicant was never received or properly processed by the DFAS within the 1-year timeframe required by the applicable law.

4.  However, the fact that the applicant submitted an inquiry to the DFAS when he noticed that the SBP deductions from his Retired Pay had changed is indicative that the applicant believed that his “Former Spouse” election had been received and processed and serves to reinforce his assertion that he submitted the form within the 1-year required under the law.  In addition, since he has not been married to his current wife for 1 year and since she agreed to waive her right to the applicant’s SBP benefits, there is no competing spouse beneficiary. Therefore, it appears it would be equitable to grant the relief requested.  

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 the SBP Election Statement for Former Spouse Coverage (DD Form 2656-1) dated 21 February 2006, in which he requested former spouse coverage, was received on 1 March 2006 and was processed by the appropriate office in a timely manner, thus changing his SBP coverage to former spouse.  





      ___        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)                                         AR20080002215





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ABCMR Record of Proceedings (cont)                                         AR20080002215



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