DOCKET NUMBER:  AR20080017644 


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 election not to participate in the Survivor Benefit Plan (SBP) be changed to SBP coverage for former spouse.

2.  The applicant states, in effect, that during his DFAS (Defense Finance and Accounting Service) retirement interview, he was told that there was no record of his divorce to his former spouse and that according to policy, she and/or her attorney had 90 days from the court proceedings to file the decree with DFAS and because the decree was not filed, the SBP for his former spouse was not required.  He also states, in effect, he checked with legal in Oklahoma and was informed of the same policy.  During his final out-processing, no SBP was elected.  In his DD Form 149 (Application for Correction of Military Record), the applicant states, in effect, "If authorized, grant [his former spouse] her claim to SBP."

3.  The applicant provides those documents listed as enclosures in Item 10 of the DD Form 149.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows that the applicant enlisted in the Regular Army on 23 August 1968.  On 1 October 1977, he was appointed a warrant officer in the Reserve, with concurrent call to active duty.  The applicant remained on active duty until 31 August 2007 when he was honorably separated for the purposes of retirement in the rank and pay grade, Chief Warrant Officer Five, W-5.

2.  The evidence of record shows the applicant and his former spouse were married on 3 March 1967.  They were divorced on 6 July 1990 in the District Court of Comanche County in the state of Oklahoma.

3.  The following is included in the decree of divorce:  "The parties hereto state that they have been married for over 23 years, of which 21.75 years [the applicant] has been on active duty for the US Army; therefore, the parties hereto agree that, in accordance with federal statutes, the [former spouse] is entitled to fifty percent (50%) of the applicant's retirement pay at the time he retires.  It is agreed that the [applicant] shall take out the Survivor Benefit Plan with the US Army designating [his former spouse] as beneficiary and this shall not be changed until her death."

4.  The applicant's former spouse provided the applicant with a statement addressed, "To Whom it May Concern."  In this statement, the applicant's former spouse stated, in effect, she did not know why there was no record of the divorce in the DFAS.  She added that every time she renewed her identification card she had it with her and it was copied the first time she went to the finance office at Fort Sill in 1990.  She continues that, concerning the time of filing, when she went to the finance office in 1990, the man she talked to told her it was her former husband's responsibility to file the paperwork for the SBP at the time of his retirement and there was no provision for her at this time, or any other (emphasis added).  She concludes by stating that the divorce decree states that her former spouse is responsible for the paperwork.

5.  On 3 May 2007, the applicant, in preparation for his retirement, completed a DD Form 2656 (Data for Payment of Retired Pay).  The DD Form 2656 shows he remarried on 6 November 1990.  In Section IX (SBP Election), Item 26 (Beneficiary Category(ies), the applicant elected not to participate in the SBP.  Item 28.e. (I elect coverage for my former spouse.) was left blank.

6.  The applicant's present spouse entered her signature in Item 30.a (Signature) in Section XI (SBP Spouse Concurrence).  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 the applicant's present spouse's signature were witnessed by a survivor benefit counselor on 3 May 2007.

7.  There is no evidence the applicant's former spouse filed a "deemed election for SBP coverage."


8.  On 6 May 2009, an ABCMR staff member inquired of a DFAS representative to determine if a collection was being made from the applicant's retired pay in payment for SBP premiums.  The representative responded in the negative and added that there was not because of the election that was made by the applicant and his present spouse on the DD Form 2656 that was completed on 3 May 2007.

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.  Elections are made by category, not by name, and are irrevocable except as provided for by law.

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 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an election.

12.  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 shows the applicant and his former spouse were married in 1967 and divorced on 6 July 1990.  The applicant remarried on 6 November 1990.

2.  The applicant was required by the court and instructed in their divorce decree that he would take out the SBP and designate his former spouse as beneficiary and this would not be changed until her death.



3.  The applicant remained on active duty until 31 August 2007 when he was honorably separated for the purpose of retirement.

4.  On 3 May 2007, the applicant, in preparation for his retirement, completed a DD Form 2656.  The applicant declined participation in the SBP.  He neither wanted coverage for this spouse or for his former spouse.  Item 28.e. (I elect coverage for my former spouse.) was left blank.  The applicant's spouse concurred with his election and in so doing, waived SBP coverage in her own stead.  The applicant and his present spouse signed and had their signatures witnessed on the DD Form 2656 on the same date.

5.  The applicant's former spouse failed to submit a deemed election for former spouse SBP coverage within one year of his retirement.  It appears she relied on instructions allegedly given her at Fort Sill in 1990 by a finance office representative.  It further appears that she was expecting that the applicant would fully comply with the provisions of the divorce decree and ensure that she was provided SBP protection as a former spouse.

6.  In his application to the Board, the applicant now states, "If authorized, grant [his former spouse] her claim to SBP."

7.  Based on the evidence in this case, the applicant is entitled to a correction of his record to show that he elected former spouse coverage under the SBP.

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 to show 


that he completed his DD Form 2656 on 3 May 2007 and elected to participate in the SBP for former spouse coverage, full base amount.




      _______ _   _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)                                         AR20080017644





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ABCMR Record of Proceedings (cont)                                         AR20080017644



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