IN THE CASE OF:
BOARD DATE: 19 February 2009
DOCKET NUMBER: AR20080017542
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 correction of his military records to show that he changed his election for Survivor Benefit Plan coverage from spouse to former spouse.
2. The applicant states, in effect, that he was divorced in 2002. He further contends that he was not briefed at the time of his retirement briefing in 1997 about the possible requirement to provide for former spousal coverage.
3. The applicant provides, in support of his application, copies of his marriage license and certificate, SBP election form (DD Form 2656), and his divorce judgment with separation agreement (partial copy).
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. On 11 June 1973, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). He subsequently served through a series of enlistments and assignments until his retirement on 30 June 1997, based on sufficient length of service. He had attained the rank of master sergeant, pay grade E-8, and had completed 24 years and 20 days of creditable active duty service.
3. On 2 July 1975, the applicant married R____ E____.
4. On 27 March 1997, the applicant elected SBP coverage for his spouse based on his full gross retirement pay. His spouse concurred with his election. She signed and dated the DD Form 2656 on 27 March 1997.
5. The applicant's divorce judgment, dated 6 March 2001, ordered that the separation agreement between him and his former spouse entered into on
22 January 2001, be incorporated into the Judgment for Absolute Divorce as if it were fully set out therein.
6. Page 6, of what appears to be a part of the separation agreement, states, in effect, that the applicant will enroll his former spouse in the SBP as beneficiary and that this designation is irrevocable. The applicant was further required to verify annually to his former spouse that she is the beneficiary. The applicant was to be fully responsible for the payment of the SBP out of his military retirement pay. Both the applicant and former spouse signed the agreement.
7. 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.
8. 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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members, including Reservists.
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his SBP election should be changed to show his former spouse as beneficiary.
2. The evidence clearly shows that the applicant elected full coverage for his spouse at the time of his retirement and that his spouse at the time concurred. His subsequent divorce requires him to retain his former spouse as the irrevocable beneficiary of his SBP.
3. In view of the above, the applicant's request should be granted.
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 his former spouse is the beneficiary for his Survivor Benefit Plan.
_______ _ 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.
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ABCMR Record of Proceedings (cont) AR20080017542
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