IN THE CASE OF:	 

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080009432 


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, correction of his records to show he timely changed his Survivor Benefit Plan (SBP) coverage from “spouse” to “former spouse” coverage.

2.  The applicant states that he wants his former spouse covered under the SBP that he has been paying for over the years.  He also adds that the SBP was not mentioned in their divorce agreement since neither he nor his former spouse thought of the issue at the time.  He also adds that according to the “Army Echoes,” Issue 3, September-December 2007, it appears that his former spouse is eligible for the SBP benefit; however, he was told by the Defense Finance and Accounting Service (DFAS) officials that his former spouse is not entitled to the benefit.  He concludes that it is the right thing to do for his former spouse before he dies.     

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

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 December 1967.  

	b.  Copy of Army Echoes, Issue 3, September-December 2007.

	c.  DFAS-CL 7220 (Retiree Account Statement) as of 1 June 2007.

	d.  DFAS-Cleveland, Ohio, Designation of Beneficiary Card.  
	e.  DFAS Retired and Annuity Pay letters, dated 27 August 2007 and 18 October 2007.

	f.  Property Settlement, Custody, and Child Support Agreement and Decree of Dissolution, dated 29 December 1982.

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 records show he was born on 6 March 1947 and was inducted into the Army of the United States on 9 August 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer).  His records also show he was injured in the Republic of Vietnam and underwent a Physical Evaluation Board (PEB) that directed his placement on the permanent disability retired list (PDRL), in the rank/grade of specialist four (SP4)/E-4, effective 26 December 1967.

3.  The applicant’s records show he married S_____ on 15 October 1968. 

4.  The applicant’s DA Form 4240 (Data for Payment of Retired Army Personnel), is not available for review with this case; however, it appears that after his retirement, the applicant elected to enroll in the SBP during an open season for full SBP spouse coverage. 

5.  On 4 December 1982, the applicant and his former spouse voluntarily entered into a Property Settlement, Custody, and Child Support Agreement, resolving their respective rights as to matters of property and debts, custody, and child support.  Their agreement is silent on the SBP (did not address any aspects of the SBP).

6.  On 29 December 1982, the Lake Circuit Court, County of Lake, Indiana, approved the agreement between the applicant and his spouse and issued a Decree of Dissolution. 

7.  There is no indication that the applicant informed DFAS of the dissolution of his marriage or made an election to change SBP coverage from “spouse" to “former spouse" within one year of the date of the dissolution of his marriage.    

8.  There is no indication in the applicant’s records or at DFAS that the applicant remarried.

9.  DFAS records show that the applicant continued to pay SBP premiums.

10.  On 20 January 2007, the applicant submitted a Designation of Beneficiary Information Card to DFAS designating his former spouse, S_____, as the beneficiary of his SBP annuity.   

11.  On 28 July 2007, by letter, the applicant notified DFAS that he was informed that his former spouse was not eligible for SBP benefits and enclosed a copy of his Property Settlement, Custody and Child Support Agreement (he called this his “divorce papers”) and requested to stop the SBP.

12.  On 27 August 2007, by letter, a DFAS Military Pay Technician notified the applicant that his SBP request could not be processed without a complete copy of his “FINAL” signed and dated divorce decree.

13.  On 18 October 2007, a DFAS Military Pay Technician again notified the applicant that his SBP request could not be processed without a complete copy of his “FINAL” signed and dated divorce decree and that the Property Settlement, Custody and Child Support Agreement, was not in his final divorce decree and that DFAS could not use this document to stop the SBP. 

14.  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.  Elections are made by category, not by name.

15.  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.


16.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).  This amendment to the law was passed in order to clarify the application of the former spouse option and was effective on the day the act was passed.

17.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

18.  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.

19.  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 his records should be corrected to show he timely changed his SBP coverage from “spouse” to “former spouse” coverage.

2.   The evidence of record shows that at one point after his retirement, the applicant elected to participate in the SBP, spouse coverage.  Furthermore, at a later date in 1982, he and his spouse entered into an agreement to dissolve their marriage.  This agreement was adjudged and decreed by the Court on 29 December 1982.  

3.  The applicant did not remarry; yet, continued to pay SBP premiums throughout the years.  This suggests that it was his intent all along to continue to provide the SBP for the former spouse.  Therefore, it would be equitable to correct the applicant’s records to show he changed his SBP coverage to former spouse coverage within one year of the marriage‘s dissolution.  

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 by showing that he changed his SBP coverage from spouse to former spouse coverage on 24 September 1983, the first day he was eligible under the law to make this election and that his request was received and processed by the appropriate office in a timely manner.




      _______ _ 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)                                         AR20080009432



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ABCMR Record of Proceedings (cont)                                         AR20080009432



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