IN THE CASE OF:	  

		BOARD DATE:	       24 September 2009

		DOCKET NUMBER:  AR20090006035 


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 records to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within one year of his divorce. 

2.  The applicant states that he was divorced on 23 May 2005 and the divorce decree awarded the SBP benefit to his former spouse.  He then remarried on 
18 June 2005 but failed to change his SBP coverage to his former spouse and erroneously added his current spouse to his SBP plan.  He adds that upon review of his Retiree Account Statement, he noticed that his former spouse is not recorded as the beneficiary.  He also adds that his former spouse did not fulfill the requirement of submission for a deemed election within one year of their divorce and he just wants to be in compliance with the divorce decree. 

3.  The applicant provides a copy of his divorce decree, dated 23 May 2005, in support of his request.  

4.  On 28 April 2009, the applicant submitted a letter, dated 12 June 2008, from an attorney at the Georgia Legal Service Program, Savannah Regional Office, Savannah, GA, and a copy of the divorce decree, addressed to the Defense Finance and Accounting Service (DFAS); a copy of his marriage license, dated 13 June 2005, and certificate of marriage, dated 18 June 2005; a copy of a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 19 January 2006; a copy of DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 20 May 2004; and a copy of a DFAS letter, dated 7 December 2005, titled: Designation of Beneficiary, and a copy of the Designation of Beneficiary Information, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 2 June 1935 and enlisted in the Regular Army on 1 October 1954.  He subsequently executed several reenlistments in the Regular Army, held several military occupational specialties, served in various staff and leadership positions within and outside continental United States and attained the rank/grade of sergeant first class (SFC)/E-7.

2.  On 8 February 1973, the applicant married his first wife, Madxxxxx.

3.  On 22 October 1974, the applicant completed a DA Form 4240 (Data For Payment of Retired Army Personnel).  He indicated that he was married and had dependent children and elected spouse only, full SBP coverage.

4.  The applicant’s records further show he was honorably released from active duty on 31 October 1974 and was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 November 1974.  He was credited with completing 20 years and 1 month of faithful honorable active service.

5.  On 23 May 2005, the applicant and his spouse, Madxxxxx, were divorced.  The Divorce Decree ordered that the applicant would maintain his election of Madxxxxx as his surviving beneficiary under any retirement or pension plan.  

6.  There is no indication that the applicant notified DFAS within one year of their divorce or that his former spouse made a deemed election within one year of the divorce.  

7.  On 18 June 2005, the applicant married his second spouse, Wixxxx.

8.  On 7 December 2005, the applicant submitted a Designation of Beneficiary Information to DFAS naming his second spouse, Wixxxx, as his beneficiary.

9.  On 12 June 2008, by certified letter, an attorney at the Georgia Legal Service Program, Savannah Regional Office, Savannah, GA, provided DFAS with a copy of the divorce decree, dated 23 May 2005, as well as a notice that the applicant was required to maintain his election of his former spouse as his surviving beneficiary under any retirement or pension plan.  


10.  On 12 August 2008, the applicant submitted a DD Form 2656-6 to DFAS.  He indicated that his "current coverage" was suspended and that he is requesting a change based on remarriage.  He elected to resume the existing level of coverage for his new spouse.  He and a witness further authenticated this form by placing their signatures and dates in the appropriate blocks. 

11.  On 21 August 2009, the case analyst of record contacted the applicant and applicant was also notified by letter that SBP coverage is by category and since he has remarried in 2005, his current spouse has a vested interest in the SBP.  He was asked to submit a signed, notarized declaration from his current spouse renouncing any claim interest in the SBP annuity.  However, he did not do so within the time allotted. 

12.  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.

13.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

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 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.

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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he timely changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to their divorce decree.  


2.  The evidence of record shows that at the time of his retirement in 1974, the applicant elected to participate in the SBP for spouse coverage.  Years later, he and his spouse were divorced in May 2005.  The divorce decree ordered that the applicant would maintain his election of first spouse as his surviving beneficiary under any retirement or pension plan.  However, the applicant did not make a former spouse election within one year of the divorce as required by law.

3.  Furthermore, the applicant remarried in June 2005.  Since SBP elections are made by category, not by name, once the applicant and his first spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event the applicant dies, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least one year. 

4.  The ABCMR may not correct the applicant's records to effectively change his election to former spouse, for so doing would deprive his current spouse of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from this current spouse renouncing any interest in the SBP annuity.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement in this case.  Therefore, he is not entitled to relief.

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 for correction of the records of the individual concerned.




      __________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)                                         AR20090006035



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ABCMR Record of Proceedings (cont)                                         AR20090006035



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