IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080010160 


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 did not make a Survivor Benefit Plan (SBP) election to change coverage from “spouse” to “former spouse” and a refund of all premiums paid since 4 November 1995.

2.  The applicant states that his former spouse forged his signature.

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

	a.  A self-authored statement, dated 21 April 2008.

	b.  Pages 1 and 4 of a 4-page Divorce Decree, dated 4 November 1994.

	c.  Election Statement for Former Spouse Coverage.

	d.  DD Form 1882 (Survivor benefit Plan Election Change (Former Spouse)), dated 4 November 1995.

	e.  Marriage Certificate, dated 27 December 1997.

4.  On 16 September 2008, the applicant submitted another copy of pages 1 and 4 of his divorce decree, dated 4 November 1994, and a copy of his marriage license to Carolyn, dated 27 December 1993.


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 initially enlisted in the Regular Army on 26 March 1974 and was trained in military occupational specialty (MOS) 13B (Cannon Crewmember).  He married his spouse Catheren on 22 April 1983.  His records also show that he executed a series of extensions and/or reenlistments in the Regular Army and was placed on the Retired List in the retired grade of sergeant first class (SFC) on 1 April 1994.

3.  On an unknown date prior to his retirement, the applicant elected spouse and children SBP coverage at full amount.

4.  On 4 November 1994, the applicant and his spouse Catheren, were divorced. A complete copy of the divorce decree is not available for review with this case.

5.  On 4 November 1995, the applicant executed an SBP Election Change to former spouse coverage.  The accompanying Election Statement for Former Spouse Coverage, also dated 4 November 1994, shows that the election was not made pursuant to a court order; rather, as a result of an agreement between the applicant and his former spouse.  The applicant and his spouse authenticated this form by placing their signatures and dates in the appropriate location and a witness also authenticated this form by placing her signature and date in the appropriate location.

6.  On 27 December 1997, the applicant married his second spouse, Carolyn.

7.  The Defense Finance and Accounting Service (DFAS) records show that the applicant continued to pay SBP premiums at the former spouse and children rate.  

8.  In his self-authored statement, dated 21 April 2008, the applicant makes a complaint to the Board that his former spouse forged his signature on the SBP Election Change Certificate and that he would like this Board to review all documents and refund him all the monies paid from 4 November 1995 to present.

9.  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. An election, once made, was irrevocable except in certain circumstances.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

10.  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.

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

12.  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.

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 evidence of record shows that upon retirement, the applicant elected spouse and children SBP coverage.  He was subsequently divorced and made an election, in the presence of a witness, to change his SBP election from “spouse and children” to “former spouse and children” coverage. 

2.  The applicant’s contention that his former spouse forged his signature is noted; however, he did not produce any evidence, such as a court order or a police investigation report that supports this contention and proves that his signature was forged.  The Army Board for Correction of Military Records (ABCMR) is not an investigative agency or a legal court.  The ABCMR corrects records based on error or injustice supported by the evidence of record.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement in this case.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20080010160



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010160



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1