IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080005544 

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, in effect, that his former spouse be permitted to apply for the Survivor Benefit Plan (SBP) due to the Defense Finance and Accounting Service’s (DFAS) refusal to accept any responsibility for his missing documents. 

2.  The applicant states, in effect, that on 21 December 2007, he provided DFAS the required paperwork to begin the process of ensuring his former spouse was covered by SBP as mandated by their divorce decree.  He states that originally, he sent DFAS the paperwork on 15 August 2006.  He followed the procedures outlined in the Army Echoes which did not indicate that there was a requirement for documents to be submitted by registered mail as a DFAS supervisor later advised him.  He also states that after this conversation with DFAS in December 2007, he again submitted copies of his divorce paperwork.  On 28 January 2008, he was again informed by DFAS that they were still not in possession of his paperwork and he needed to provide proof that his paperwork had been sent by registered mail.  Finally, he states that on 11 March 2008, he received notification from DFAS that his request for former spouse SBP had been denied and his SBP payments were being refunded.  

3.  The applicant provides copies of his Separation and Property Settlement Agreement; Final Divorce Decree; three copies of letters he wrote to DFAS; a letter he received from DFAS; a page from the Army Echoes Magazine, dated
3 December 2002; his retirement account statement; a copy his DD Form 2656 (Data for Payment of Retired Personnel), dated 20 June 1997; and an email dated 2 September 2008, clarifying his intentions to the Board, in support of his application. 


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he enlisted in the Regular Army on 29 June 1973 and he continuously served in an active duty status by serving in the United States Army Reserve (USAR), and the Active Guard Reserve (AGR) component through a series of extensions and/or reenlistments.

2.  The applicant’s records also show that he and his former spouse were married on 31 March 1980.

3.  The applicant’s DD Form 2656, dated 20 June 1997, shows in Item 28 (SBP Election) that he elected “full coverage for his spouse and children” based on full gross retirement pay.  

4.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was honorably retired on 30 September 1997, due to sufficient service for retirement and he was transferred to the USAR control group as a sergeant major, effective 1 October 1997 after completing 24 years, 3 months and 
3 days of active military service.  

5.  The applicant’s Separation and Property Settlement Agreement, dated 
9 October 2001 shows on page 5 that the former spouse agreed to waive all claims to receive a survivor’s annuity under the Military Services Survivor Benefit Plan and she agreed to sign any required waiver forms upon the applicant’s processing for retirement from active duty.

6.  The applicant’s final divorce decree shows that he and his former spouse were granted a final decree of divorce on 1 June 2006.  The property settlement agreement was amended by the decree to show the applicant would elect to provide SBP coverage for his former spouse in connection with his military retirement benefits as determined by the courts.  

7.  The applicant’s letter written to DFAS, dated 15 August 2006, states that he informed DFAS that he was divorced and his former spouse was entitled to SBP as determined by the courts.  The letter, written to DFAS, dated 21 December 2007, states that the applicant informed DFAS by telephone and via U.S. Postal Service in June 2006 of his divorce and that he had requested former spousal SBP coverage and that he was again submitting his final divorce decree for their records.

8.  On 29 January 2008, the DFAS, Retired and Annuity Pay Branch, acknowledged the applicant’s correspondence, dated 21 December 2007.  DFAS explained to the applicant that there was no record of him submitting any previous correspondence and that he should show proof of any documents sent by registered mail.  The memorandum from DFAS also explained to the applicant that if he could not provide proof that he attempted to cover his former spouse, the 1 year window to convert from spouse to former spouse had passed and he was due a refund of overpaid SBP premiums from the first month after his divorce through the current work month.  DFAS also informed the applicant that no changes had been made to his account and asked him to provide proof of his earlier intent to change the status of his SBP account within 30 days so a determination could be made.

9.  The applicant submitted a copy of a letter to DFAS dated 10 February 2008, acknowledging receipt of the 28 January 2008 memorandum.  The applicant responded by stating that he was submitting a copy of the Army Echoes’ issue, dated 3 December 2002, that he had used as a guide for keeping his DFAS records up to date and a copy of a previous letter he had submitted to DFAS minus all of the divorce paperwork he states that he had already provided. 

10.  The applicant’s Retiree Account Statement, dated 3 March 2008, shows he received a “miscellaneous credit” in the amount of $3,186.38 (SBP credit).  He also submitted a second copy of his Retiree Account Statement dated the same date, that shows effective 1 April 2008, his SBP coverage would be for child(ren) only.

11.  On 31 March 2008, the applicant applied to the ABCMR for former spouse SPB coverage and he followed up with an e-mail on 2 September 2008.

12.  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.

13.  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.


14.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant elected SBP spousal coverage at the time of his retirement on 30 September 1997.  The applicant and the former spouse married on 31 March 1980 and divorced on 1 June 2006.  The final divorce decree indicates the applicant agreed to provide SBP coverage for his former spouse.  

2.  At the time of his retirement, the applicant elected SBP coverage participation for his spouse.  As part of the divorce settlement agreement, the applicant was required to elect former spouse SBP coverage for his former spouse.  However, there is no evidence that the applicant notified DFAS within one year of the divorce or that he made a new election for former spouse coverage, as required by the SBP statute, or that he filed the proper forms with DFAS to make this change.    

3.  Based upon the SBP award in the final divorce decree, the applicant's SBP beneficiary should be changed to former spouse beneficiary and the applicant should be required to repay SBP premiums from the effective date of the divorce decree, 1 June 2006. 

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 to show:

a. that the applicant elected to participate in the SBP for former spouse
coverage, full base amount, on 1 June 2006; and
b. that the applicant be advised that the Defense Finance and Accounting
Service will be instructed to collect any additional SBP premium costs that may be due as a result of this action, effective from 1 June 2006, the date of the applicant’s divorce.



      _______ _   __X____   ___
      	   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)                                         AR20080005544



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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