IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006869 


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 the records of her former spouse, a former service member (FSM), be corrected to show that he changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage at the time of their divorce.

2.  The applicant states that she was awarded the SBP benefit in her divorce on 3 May 2004 and that her former spouse violated the court order and cancelled the SBP, saying that she (the applicant) did not need it.  She also adds that she was sent from one agency to another and can’t afford a lawyer to do the work, and that if her former spouse died, she wants to get what is owed to her. 

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Final Divorce Decree, dated 3 May 2004.

	b.  DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), dated 20 May 2004.  

	c.  Self-authored letter, dated 6 April 2008. 





CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 5 June 1947 and enlisted in the Indiana Army National Guard (INARNG) on 10 March 1966.  His records also show that he executed a series of extensions and/or reenlistments in the INARNG.

2.  The FSM’s records also show that he and the applicant, Patricia, were married on 22 December 1967.

3.  On 12 March 1987, the Departments of the Army and the Air Force, National Guard Bureau, Falls Church, Virginia, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired upon application at age 60.

4.  The FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 5 December 1987, indicates that he elected full RCSBP coverage for spouse and children, Option C (immediate coverage).  His spouse at the time was Patricia.  He listed two children, born September 1969 and May 1972, respectively.

5.  On 3 May 2004, the FSM and applicant were divorced.  The Divorce Decree awarded Patricia, the applicant, 34 per cent of the applicant’s disposable retired pay.  It also ordered that the FSM would maintain Patricia, the applicant, on his government (U.S. Army) Survivor Benefit Plan.  The Decree further ordered that the FSM would immediately designate his former spouse, Patricia, the applicant, beneficiary under the SBP and ordered she continue to remain beneficiary as former spouse under the plan.  

6.  The FSM's records show that on 20 May 2004, the FSM completed two forms as follows:

	a.  DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), where he indicated that his current coverage is “spouse and child” and that he is requesting a change on coverage based on “divorce.”  He and a witness authenticated this form by placing their signatures and dates in the appropriate blocks; and 

	b.  DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), where he indicated that due to divorce, he is requesting to change his SBP coverage to “former spouse” and that this election is made pursuant to the requirements of a court order.  The FSM authenticated this form by placing his signature in the appropriate block.  The FSM’s witness authenticated this form by placing his signature and date (20 May 2004) in the appropriate blocks.  Furthermore, Patricia, the applicant and former spouse, placed her signature in the appropriate block and her witness placed her signature and date (6 June 2004) in the appropriate blocks. 

7.  There is no indication that the DD Form 2656-1 and/or the DD Form 2656-6 were received by DFAS.  However, copies of these forms were posted to the FSM's Interactive Personnel Electronic Records Personnel System (iPERMS), an integrated database that provides the Soldier/Army with electronic storage, retrieval, and transfer capability.  It is the Soldier's Official Military Personnel File (OMPF).

8.  On 6 February 2006, Texas Military Force, Adjutant’s General Department, Army National Guard, Austin, Texas, published Orders 037-1010, discharging the applicant from the Army National Guard and honorably reassigning him to the Retired Reserve.  

9.  On 30 May 2007, the U.S. Army Human Resources Command, St. Louis, Missouri, published Orders P05-786787, placing the applicant on the Retired List, in the rank/grade of sergeant first class (SFC)/E-7, effective 5 June 2007, the date he turned 60. 

10.  An electronic mail (email) from the Army Liaison at DFAS-Retired Pay, dated 30 July 2008, indicates that after his divorce on 3 May 2005, the FSM married his second wife Ola on 28 January 2006 and that he currently has SBP, spouse coverage.

11.  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.

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

13.  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.

14.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her former spouse should be corrected to show that he changed his SBP coverage from “spouse” to “former spouse” coverage pursuant to their divorce decree.  

2.  The evidence of record shows that subsequent to his divorce on 3 May 2004, and within one year of the divorce, the FSM initiated the necessary forms to change his SBP election from “spouse” to “former spouse” and that the applicant concurred with this election and authenticated this form.  It is unclear if the SBP Election Change Certificate was sent to DFAS at the time or if DFAS received the form but did not act on it.  When the FSM remarried, he notified DFAS and his SBP coverage remained that of "spouse coverage."  

3.  Nevertheless, the FSM's SBP Election Change Certificate, former spouse coverage, was completed and entered into the FSM's military records within one year of his divorce, as stipulated in the Court order.  The filing of the form and placement in the FSM's OMPF was sufficient to memorialize his election and make the change to perfect the applicant's interest as a former spouse beneficiary.  This is true even though the FSM subsequently remarried and DFAS' records currently show his second wife as the beneficiary.  Therefore, the FSM's records should be corrected to show he elected "former spouse" coverage and the former spouse, the applicant, is the SBP beneficiary.

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 he changed his SBP coverage from "spouse" coverage to "former spouse" coverage" on 20 May 2004 and that his request was received by DFAS and processed by the appropriate office in a timely manner.




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      _______ _   _______   ___
               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)                                         AR20080006869



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ABCMR Record of Proceedings (cont)                                         AR20080006869



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