IN THE CASE OF:
BOARD DATE: 14 July 2009
DOCKET NUMBER: AR20090002800
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 military records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states, in effect, that it is the hope of all parties in this case (himself, his current spouse, and his former spouse) that the Board reverses the current SBP election. He indicates that his former spouse, who was married to him during his entire term of military service, is entitled morally, if not in law, to this benefit. He further states that all of them would be pleased by the change and none of them are in favor of the current situation.
3. The applicant provides a notarized statement from his current spouse, a DD Form 2656-9 (SBP and Reserve Component SBP Open Enrollment Election), a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), and his divorce decree in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 15 August 1945. He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 28 July 1967. He married on 18 April 1970.
2. The applicant's DD Form 1833 (SBP Election Certificate), dated 22 May 1991, shows he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage, option C, full base amount.
3. The applicant transferred to the Retired Reserve on 21 March 1995.
4. The applicant divorced on 28 September 1998.
5. The applicant remarried on 17 March 2001.
6. On 6 June 2004, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) enrolling in the SBP for spouse coverage, full base amount.
7. The applicant reached age 60 and began receiving retired pay effective 15 August 2005.
8. On 27 March 2006, the applicant completed a DD Form 2656-9 enrolling in the SBP for former spouse coverage, full base amount.
9. On 21 January 2009, the applicant's spouse provided a notarized statement concurring with the applicant's desire to change his SBP coverage from spouse to former spouse.
10. 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.
11. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60.
12. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
13. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
14. 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 1 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.
15. 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 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
It appears to be the applicant's intention to maintain his former spouse as his SBP beneficiary. The applicant's spouse provided her concurrence with his decision to change his SBP coverage to former spouse coverage. Therefore, it would be equitable to show the applicant made a written request to change his SBP coverage to former spouse coverage within the time frame provided by law.
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 he made a written request to change his SBP coverage to former spouse coverage on 1 November 1998 and that his request was received and processed by the appropriate office in a timely manner.
____________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) AR20090002800
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ABCMR Record of Proceedings (cont) AR20090002800
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