IN THE CASE OF:
BOARD DATE: 23 September 2008
DOCKET NUMBER: AR20080010158
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 former spouse be reinstated as his beneficiary under the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that he retired and did not keep up with the SBP requirements, which was an oversight on his part. When he moved, he stopped receiving the Army Echoes with information about SBP until recently.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 28 February 1994; a four-page District Court, Arapahoe County, Colorado, Decree of Dissolution of Marriage, dated
9 August 2004; a State of Michigan Marriage License, dated 24 December 1971; and a State of Colorado Marriage License, dated 30 May 2008.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant married on 26 December 1971. He enlisted in the Regular Army on 15 November 1973.
3. On 10 December 1993, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he elected spouse SBP coverage, full base amount.
4. The applicant retired on 28 February 1994. On 9 August 2004, he divorced.
5. On 30 May 2008, the applicant remarried.
6. 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.
7. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
8. 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.
DISCUSSION AND CONCLUSIONS:
The applicant did not request that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one-year time limit. But he now wishes to provide SBP coverage to his former spouse. It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner.
BOARD VOTE:
__xx____ ___xx___ ___xx___ 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, on 15 August 2004, he made a written request to change his SBP
coverage to former spouse coverage and his request was received and processed by the appropriate officials in a timely manner.
_________xxxx_________
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) AR20080010158
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080010158
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090005481
The applicant contends that the records of her former spouse, a FSM, should be corrected to show that he changed his SBP coverage from "spouse" to "former spouse" coverage at the time of their divorce and that she is the sole beneficiary of his SBP annuity. The evidence of record shows that prior to his retirement in 1991, the FSM elected full SBP spouse and children coverage. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...
ARMY | BCMR | CY2011 | 20110013851
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. 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...
ARMY | BCMR | CY2009 | 20090001313
The applicant states that she was married to the FSM for 25 years, 18 of which were during his military service and that upon his retirement, he elected spouse coverage under the SBP. The applicant contends that the records of her former spouse should be corrected to show that her request for a deemed election of former spouse coverage under the SBP was timely received and properly processed by officials at DFAS. As a result, the Board recommends that all Department of the Army records of...
ARMY | BCMR | CY2010 | 20100011371
Application for correction of military records (with supporting documents provided, if any). 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. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a...
ARMY | BCMR | CY2009 | 20090015433
The applicant submitted a copy of a DA Form 2656-1, dated 21 July 2008, showing he requested a change in election coverage due to divorce from spouse to former spouse. He states he provided DFAS with a copy of his divorce decree and to date has not remarried; however, DFAS maintains the applicant did not notify them within 1 year of the divorce of his election for former spouse coverage as required by the SBP statute. There is sufficient evidence to show that the applicant's intent was to...
ARMY | BCMR | CY2010 | 20100026946
The evidence of record shows that when the FSM retired in 2006, he elected SBP for spouse coverage. In 2008, the FSM and the applicant were divorced. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM changed his SBP coverage from "spouse" to "former spouse" within 1 year of their divorce in February 2008; b. showing his request was timely received and processed by the appropriate DFAS office; and c....
ARMY | BCMR | CY2010 | 20100028456
A Retiree Account Statement effective 2 December 2009 shows the FSM's former spouse (the applicant) was receiving a portion of his retired pay and that he was paying SBP costs for spouse-only coverage for a spouse with a date of birth (DOB) of 21 May 1932. In view of the foregoing, it would be appropriate to correct the FSM's record to show the applicant submitted a request for a deemed election of former spouse SBP coverage within 1 year of their divorce and pay her the SBP annuity...
ARMY | BCMR | CY2013 | 20130022211
Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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. Even though the FSM continued to pay the SBP premiums neither the applicant nor the FSM made a deemed election for former spouse coverage within one year of the divorce. As a result, the Board recommends that all Department of the...
ARMY | BCMR | CY2014 | 20140005513
The applicant contends that his records should be corrected to show he changed his SBP election from spouse to former spouse coverage because he is now divorced and his divorce decree from his first spouse requires him to make her the beneficiary for his SBP. The available evidence shows the applicant's divorce decree, dated 21 August 1997, required him to make his first former spouse the beneficiary of his SBP. As a result, the Board recommends that all Department of the Army records of...
ARMY | BCMR | CY2008 | 20080010076
The evidence of record shows that the FSM, while still married to the applicant, elected SBP spouse coverage at a reduced amount, prior to his retirement. After retirement, he and the applicant were divorced. Their divorce decree did not obligate the FSM to change SBP coverage from spouse coverage to former spouse coverage; nevertheless, he continued to pay SBP premiums after the divorce and until his death, a period of nearly 5 years.