IN THE CASE OF:
BOARD DATE: 2 June 2009
DOCKET NUMBER: AR20080019712
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 reconsideration of his earlier request for correction of his military records to show that he elected Survivor Benefit Plan (SBP) coverage for his former spouse.
2. The applicant states, in effect, that he wants to change his SBP election from his child to his former spouse in order to be in compliance with the provisions of his court ordered divorce. The current SBP election [child only] is not required by any court or written agreement. His former spouse, although remarried, is seeking legal relief to acquire beneficiary status for SBP.
3. The applicant provides, in support of his application, copies of his separation agreement; insurance policy data; notarized waiver release; correspondence from his former spouse's attorney; e-mail communication from the previous analyst, Army Board for Correction of Military Records (ABCMR); and a copy of the original Board proceedings.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070006547, dated 12 February 2008.
2. The applicant has provided a notarized waiver release from the mother and legal guardian of his minor child. This is new evidence that requires consideration by the Board.
3. The original proceedings provide the following:
a. The applicant and his first former spouse were married on 5 October 1973. They entered into an agreement on 23 January 1998 that the first former spouse would be retained as the named beneficiary of his SBP. They were divorced on 21 April 1998.
b. On 28 November 2005, the applicant completed his DD Form 2656 (Data for Payment of Retired Personnel), listed his status as "single," and elected dependent children SBP coverage at the time of his retirement. The back page of the DD Form 2656 also shows he elected coverage for "children only" and checked that he did not have a spouse.
c. The applicant was honorably separated on 30 November 2005, for the purpose of retirement. He was transferred to the Retired Reserve in the rank of major on 1 December 2005. He was credited with 21 years, 3 months, and 25 days total active service.
d. The applicant was informed that his election of SBP coverage for his minor son became an irrevocable election once he retired on 1 December 2005. Therefore, the ABCMR by law could not change his SBP beneficiary from dependent child to former spouse. Furthermore, the ABCMR could not simply add his former spouse as the beneficiary to the existing SBP coverage because there is no evidence that the child in question is the son of his first former spouse. By law, the SBP status prohibits joint former spouse and dependent child coverage if the child is not the offspring of both the retiree and former spouse.
e. The applicant was informed that in order for him to obtain the requested relief, he must obtain a waiver in writing of SBP coverage from his son's legal representative (second former spouse). Without this waiver, he would not be entitled to the desired change in favor of his former spouse. He was further informed that he may reapply for reconsideration in the future, assuming he acquired the waiver.
4. The applicant has provided a copy of his marital settlement agreement dated 2 August 2004 wherein he and his second former spouse and the mother of the child in question agreed to have joint custody of their child and that the applicant was to contribute monthly to the support of their child. There is no available evidence showing when the applicant married a second time, but presumably it was sometime after 21 April 1998.
5. On 17 November 2008, the mother of the minor child (second former spouse) signed the following notarized statement: "I hereby concur with the SBP election requested by my former spouse, to terminate his SBP coverage, and understand that this decision is irrevocable. I understand that by signing this statement I am waiving my property rights to the SBP. I have signed this statement of my free will."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that the notarized statement from the mother of his son (second former spouse) is sufficient for changing his SBP election from his child to his first former spouse.
2. However, when reading the second former spouse's statement, it is very apparent that she is giving up her rights to SBP, not those of her son. Therefore, this statement does not provide the necessary waiver suggested by the original Board proceedings.
3. In view of the above, the applicant's request should be denied.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070006574, dated 12 February 2008.
_______ _ _______ ___
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) AR20080019712
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ABCMR Record of Proceedings (cont) AR20080019712
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