IN THE CASE OF:	  

		BOARD DATE:	        30 April 2009

		DOCKET NUMBER:  AR20080011387 


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 beneficiary for Survivor Benefit Plan (SBP) coverage be changed from his spouse to his former spouse and that premiums for this SBP coverage be deducted from his former spouse's entitlement to his retired pay.

2.  The applicant states, in effect, that he incorrectly checked box 26b rather than 26f on his initial DD Form 2656 (Data for Payment of Retired Pay).  He attempted to rectify the error when he discovered it and this resulted in delay of his retirement pay.  A DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) was completed on 17 January 2007.  He was just informed that no change in beneficiary status has been made.

3.  The applicant adds that SBP coverage to former spouse was agreed upon in their divorce decree [Item 12, page 6 of 7, of the Military Qualified Domestic Relations Order (QDRO)].

4.  In support of his request, the applicant submitted a copy of his DD Form 2656; a copy of his DD Form 2656-1; a copy of his Military QDRO, dated 29 June 2005; a copy of their Decree of Dissolution, with exhibit "A," dated 29 June 2005; a copy of Respondent's Declaration of Formal Proof, dated 27 June 2005; a copy of Petitioner's Declaration of Formal Proof, dated 16 June 2005; a copy of a Summary of Retired Pay Account, dated 10 October 2006; a copy of his Retiree 



Account Statement, with an effective date of 3 January 2007; a copy of his 
Retiree Account Statement, with an effective date of 13 February 2007; and a copy of his Retiree Account Statement, with an effective date of 23 May 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant and his former spouse married on 12 June 1982 and separated on 5 January 2004.  Two children were born to the applicant and his former spouse during their marriage.  Their marriage was dissolved through divorce on 29 June 2005.

2.  On 29 June 2005, a Military QDRO was filed in the County Clerk's Office, Pierce County, Washington.  SBP coverage for former spouse was addressed in Item 12 on the 6th page of 7 pages of the Military QDRO.  This item in the Military QDRO states, "The member shall designate L**** R***** as beneficiary on his military Survivor Benefit Plan.  L**** R***** shall pay 100% of any premium necessary in order to maintain that policy for her benefit."

3.  The evidence shows the applicant remarried on 9 August 2005.

4.  On 5 September 2006, the applicant, in preparation for his retirement, completed a DD Form 2656.  In Section IX (SBP Election), Item 26 (Beneficiary Category(ies), the applicant elected coverage for his spouse and children.  Section XI (SBP Spouse Concurrence) is blank.  Completion of this section by the spouse is required when the member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage.  The applicant's election and signature were witnessed by a survivor benefit counselor on the same date.

5.  The evidence shows the applicant was honorably released from active duty (REFRAD) from the Regular Army on 30 September 2006 for the purpose of retirement and was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) on 1 October 2006 in the rank of colonel.  On the date of his REFRAD he had completed 20 years, 5 months, and 29 days of total creditable active service.

6.  The Retiree Account Statements the applicant submitted show the applicant had full SBP coverage in place for his spouse and children.  The spouse's date of birth is that of his current spouse, B***** L. R***** and not that of his former spouse, L**** R*****.


7.  On 17 January 2007, the applicant completed a DD Form 2656-1.  In Section I, (Election of Coverage - Retired Members Only), Item 1 (Due to Divorce, Change My SBP Coverage To), the applicant marked the box signifying he wanted coverage for his former spouse and his children.  To the questions 
in Item 3 (Is this election being made pursuant to the requirements of a court order?), Item 4 (Is this election being made pursuant to a written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution or annulment?), and Item 5 (If "yes" to Item 4, was such a voluntary written agreement incorporated in, ratified, or approved by a court order?), he responded, "Yes."

8.  On 26 March 2009, the applicant's spouse submitted a notarized statement dated 24 March 2009 addressed to the Board.  In this statement the applicant's current spouse indicated she was aware that her husband had agreed to name his former spouse as the beneficiary for his SBP coverage.  She added that she understood the term of the agreement and that she would not be entitled to an SBP annuity in the event of her husband's death.  She concluded by stating that she concurred with her husband's decision to elect former spouse and children SBP coverage.

9.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant divorced his spouse of 23 years on 29 June 2005.  As part of the divorce decree, he agreed to designate his former spouse as beneficiary for SBP.  A Military QDRO was filed in the County Clerks' Office, Pierce County, Washington, to formalize the agreement.

2.  The applicant remarried on 9 August 2005.

3.  On 5 September 2006, the applicant, in preparation for his retirement, completed a DD Form 2656.  In Section IX (SBP Election), Item 26 (Beneficiary Category(ies), the applicant incorrectly elected coverage for his spouse and children.  He attempted to rectify the error when he discovered it but this resulted in a delay of his retired pay.  

4.  The registered beneficiary for the SBP with the Defense Finance and Accounting Service (DFAS) is the current spouse as noted by the entries shown on the applicant's Retiree Account Statement and in particular, the current spouse's date of birth.

5.  The applicant has requested a change in beneficiary for SBP coverage of from spouse to former spouse to comply with his agreement with his former spouse and to get into compliance with court orders.

6.  The applicant's current spouse has submitted a statement of agreement with her husband's request and concurs with his decision to change the SBP beneficiary from spouse to former spouse.

7.  Based on actions taken by the applicant and his current spouse, and the evidence in this case, the applicant is entitled to a change to the beneficiary for an SBP annuity from spouse to former spouse.

8.  Premiums for SBP coverage are deducted from a military member's share of retired pay.  The applicant has requested that premiums for this SBP coverage be deducted from his former spouse's share of retired pay; however, determining the party responsible for payment of SBP premium cost is not within the purview of this Board.  It is suggested that the applicant negotiate with his former spouse and within the context of the Military QDRO make appropriate arrangements for her to reimburse him for the costs of SBP premiums as they are collected from his share of retired pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant elected to provide his former spouse an SBP annuity at the time he was processing for his retirement from active duty.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to so much of the applicant's request that premiums for SBP coverage be deducted from his former spouse's entitlement to his retired pay.



      ___________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)                                         AR20080011387



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ABCMR Record of Proceedings (cont)                                         AR20080011387



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