IN THE CASE OF:	 

		BOARD DATE:	 

		DOCKET NUMBER:  AR20080008440 


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 records be corrected to show he elected Survivor Benefit Plan (SBP) coverage for his former spouse.

2.  The applicant states, in effect, that his former spouse is legally entitled to a portion of his SBP benefits and his current wife is now designated to receive 100 percent of the benefit.  He also states that in completing his request for retirement benefits, he checked the box for current spouse only, in error.  He did, however, attach the court order applicable to his former spouse's receipt of these benefits at the time of the divorce.  He further states, in effect, that unfortunately his election for coverage for his current wife rules.  

3.  In support of his application, the applicant provides copies of his settlement agreement; his DD Form 1883 (SBP Election Certificate); his DD Form 2656 (Data for Payment of Retired Personnel); his Retiree Account Statement; his letter to the Defense Finance and Accounting Services (DFAS), London, Kentucky; letters from his former spouse to him and DFAS; his letter to Transition/Retirement Services; a letter from the Branch Chief, Personnel Processing, DA Installation Management Agency, Fort Carson, Colorado; and his current spouse's SBP termination concurrence.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 20 February 1970.  

3.  The applicant and his former spouse were married on 16 April 1983.

4.  The applicant submits a copy of his DD Form 1883, dated 10 July 1991, that shows he elected to provide an SBP annuity based on the full amount of retired pay for "Spouse Only."  In Section III (Family Information), he listed the name of his spouse, who is now his former spouse.  

5.  The applicant was honorably separated from the USAR, as a lieutenant colonel, effective 7 April 1994, and transferred to the Retired Reserve.

6.  The applicant also submits a copy of his settlement agreement that shows he and his former spouse were granted a final decree of divorce on 30 September 1997.  The settlement agreement, incorporated into the divorce decree, shows the applicant agreed, in effect, to provide his now former spouse a 30 percent annuity under the SBP.

7.  There is no evidence the former spouse submitted a "deemed election" letter within one-year of their divorce for SBP coverage.

8.  The applicant further submits a copy of his DD Form 2656, dated 22 September 2006, that shows he elected SBP coverage for spouse only.  He completed in Section VIII, Item 22 (Spouse), the name of his current spouse and their date of marriage as 29 December 2001.  In Item 26 (Beneficiary Categories) he elected SBP coverage for spouse only.  He also annotated in Section X, Item 29 (Remarks), that his former spouse was eligible for a portion of his retirement benefits and that the applicable portion of their divorce decree was attached.  

9.  The applicant also submits a copy of his Retiree Account Statement, dated 1 March 2007, showing SBP cost for spouse were being deducted.  The statement lists the applicant's current spouse's name and date of birth.

10.  The applicant also submits a copy of his letter to DFAS, dated 19 November 2007, wherein he stated, in effect, that he noticed his current spouse was the sole beneficiary to receive all SBP benefits and his former spouse was entitled to receive 30 percent of the SBP benefits.  He was advised that two people could not be designated for such benefits.  In submitting his DD Form 2656, none of the choices in Item 26 seemed to apply so he chose Item "a" (spouse only) and then indicated in Item 29 that his former spouse was eligible for a portion of his retirement benefits.  He further stated that the attachment he sent was a court order that he needed to come in compliance with.  

11.  The applicant further submits a copy of his letter from his former spouse, dated 13 December 2007, wherein she stated that she was advised by DFAS that she could go back to court and have the court order enforced or have him go to the Retirement Services Officer (RSO) at Fort Carson, Colorado, and ask them to fix this by petitioning the Army Board for Correction of Military Records (ABCMR) to instruct the people at DFAS to remove his current spouse's name as he neglected to tell them that his former spouse was the only one eligible for SBP benefits.

12.  The applicant also submits a copy of his former spouse's letter to DFAS, London, Kentucky, dated 13 December 2007, wherein she requested the Technical Department to review the court order for a second time.  She also stated that the DD Form 2656 clearly has an option for former spouse coverage in Item 26e.  Then in Item 27c, was where he was to calculate the 30 percent and fill in either that or an amount equal to that.  At the time of his retirement, the applicant should have then filled out the DD Form 2656-1, which he could have obtained by simply telling the RSO that his former spouse was the only court ordered beneficiary for SBP coverage.

13.  The applicant further submits a copy of his letter to the Transition/Retirement Services, Fort Carson, wherein he stated that he made an error in completing his DD Form 2656, in that he designated his current spouse as the beneficiary of his SBP, attached the court order, and indicated that his former spouse was entitled to a certain amount of these benefits.  He also stated that he had assumed, obviously in error, that his former spouse would be designated with 30 percent, as indicated on the attached DD Form 2656, and his current spouse would be designated with the remainder.  In this letter, the applicant also requested that the ABCMR be petitioned to remove his current spouse and provide his former spouse the benefit to which she is entitled.

14.  The applicant also submits a copy of his letter from the Branch Chief, Personnel Processing, Fort Carson, dated 18 April 2008, wherein he was 
advised that according to the SBP Manager, because he elected "Spouse Only," Item 26 only allowed one election, which he made.  He did not have spousal concurrence to take less than full coverage for her.  The comment in the remarks blocks does not mention former spouse SBP.  The letter also advised that he had to apply to the ABCMR requesting correction to his election to former spouse.  He must also provide with his request a notarized statement from his current spouse concurring with the correction.

15.  The applicant further submits a notarized statement, dated 24 April 2008, wherein his current spouse concurred with the correction of his records to provide SBP benefits to his former spouse.

16.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name, and are irrevocable except as provided for by law.  Spouse cost was at 2.5 percent of the first $300.00 of the base amount, plus 10 percent of remaining base amount.  Spouse annuity payments until age 62 was 55 percent of the base amount.

17.  Public Law 95-397,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.  There 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.  Once a member elected either options B or C in any category of coverage, that election is irrevocable.

18.  Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse’s behalf, provided the member agreed to provide coverage.

19.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant and his former spouse married on 16 April 1983.  On 10 July 1991, the applicant elected to provide an SBP annuity to his former spouse, who was at the time, his current spouse.  He was separated from the USAR and transferred to the Retired Reserve on 7 April 1994.

2.  The evidence also shows the applicant and his former spouse divorced on 30 September 1997 and their settlement agreement indicated that the applicant agreed to provide her a 30 percent SBP annuity.  There is no evidence the applicant notified DFAS within one year of the divorce of his election for former spouse coverage, as required by the SBP statute.  His former spouse also did not make a deemed election within the one year of their divorce.  

3.  The applicant was married to his current spouse on 29 December 2001.  In 2006, the applicant elected SBP coverage participation for his "Spouse Only" for coverage for his current spouse; however, this election was of no effect because he had already made his "Spouse Only" SBP election in 1991.  The initial 1991 election for coverage was at full base amount and the election was irrevocable.  His current wife became the SBP beneficiary upon their marriage based upon his 1991 election.  

4.  Based on the SBP award in the settlement agreement, the applicant's desire to comply with it, and the concurrence of his current spouse, the applicant's SBP beneficiary should be changed to former spouse beneficiary, effective 30 September 1997.  It is noted that he will still be paying premiums for his former spouse at the full base amount, per his original election and notwithstanding the settlement agreement, his former spouse is entitled to full, not reduced base amount coverage.

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:

		a.  by showing the applicant elected Survivor Benefit Plan coverage for his former spouse effective the date of their divorce on 30 September 1997; and 

		b.  by collecting Survivor Benefit Plan premiums at the full base amount from the applicant back to 30 September 1997, the date of his 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)                                         AR20080008440



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ABCMR Record of Proceedings (cont)                                         AR20080008440


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