IN THE CASE OF: .
BOARD DATE: 28 JULY 2009
DOCKET NUMBER: AR20090002986
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 records be corrected to show that he elected Survivor Benefit Plan (SBP) former spouse coverage in a timely manner.
2. The applicant states that his former spouse's SBP coverage stopped in December 2008.
3. The applicant provides a DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage) which was signed on 19 January 2009, and his divorce decree which shows that he "shall keep, maintain and designate the Wife as the survivor under his Survivor's Benefit Program now in force as a result of his military service until she marries, dies or becomes self-supporting." This decree is dated 10 October 2007.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show that he enlisted in the Regular Army (RA) on 16 September 1980. He was awarded military occupational specialty (MOS) 19K (armor crewman), and he was subsequently promoted to pay grade E-7. He was honorably released from active duty on 31 October 2000 by reason of sufficient service for retirement and he was placed on the Retired List the following day.
2. In a conversation between the Board's staff and the Human Resources Command Alexandria (USAHRC-A), Army Retirement Services, it was determined that the applicant elected spouse and child SBP coverage on
1 November 2000, he has not changed his beneficiary, and he has continued to pay SBP premiums.
3. On 19 January 2009, the applicant completed a DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage). In item 3 (Are you currently married), he checked the "NO" block.
4. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members 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.
5. Public Law 99-661, dated 14 November 1986, permitted divorce judgments to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
6. Title 10, U.S. Code, Section 1448(b)(3) provides for 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 one 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.
7. Title 10, U.S. Code, Section 1450 (under Public Law 98-525, 19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:
a. a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and
b. a copy of court order or other official statement, either:
(1) copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or
(2) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.
DISCUSSION AND CONCLUSIONS:
1. The applicant did not make a former spouse SBP election in the time prescribed by law.
2. However, the fact that the applicant did not change his beneficiary, has not remarried as of January 2009, and the fact that he continued to pay SBP premiums makes it evident that he believed that by continuing to pay SBP premiums and by not changing his SBP election, he was complying with the court order to continue his former wife as his SBP beneficiary.
3. As such, it would be in the interest of justice to show that the applicant made a former spouse SBP election within a year from the date of his divorce decree.
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 former spouse SBP election within a year of his divorce decree and that it was timely received and processed by DFAS.
___________XXX__________
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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