IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090006822 


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 record be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage in conjunction with his divorce.

2.  The applicant states, in effect, that he recently learned that he was required to submit a request to change his SBP election from spouse to former spouse in accordance with his divorce decree.  He states that it was always his intent to provide an SBP annuity for his former spouse and indicates that he has continued to pay SBP premiums accordingly.  He indicates he has remarried but that he wants to ensure his former spouse receives the benefits of his SBP.

3.  The applicant provides the following documents in support of his application:  self-authored statement; letter of support, DD Form 2656-1 (Survivor Benefit Election (SBP) Election Statement for Former Spouse Coverage), Decree of Divorce , and Separation Agreement.

CONSIDERATION OF EVIDENCE:

1.  On 31 July 1995, the applicant was honorably retired from military service, in the rank of master sergeant (MSG), after completing a total of 20 years, 11 months, and 18 days of active military service. At the time of his retirement, he elected spouse and children SBP coverage.

2.  The applicant and his former spouse were married on 18 November 1976.
3.  On 10 April 2006, the Commonwealth of Virginia issued a Separation Agreement.  Paragraph 34 of page 11 of this document states, in pertinent part, that both parties agreed that the Husband shall pay the Wife one hundred percent (100%) of his net military retirement benefits and that the Wife shall be entitled to claim survivor benefits and shall be solely responsible for and hold the Husband harmless for any and all said costs related thereto.  Both the applicant and the former spouse authenticated this document with their signatures on 10 April 2006.

4.  On 26 January 2007, the Circuit Court of the City of Alexandria issued a Decree of Divorce A Vinculo Matrimonii (divorce decree).  This document provided the approval for the Separation Agreement and further included a clause pertaining to the Wife's (former spouse) entitlement to 100% of the husband's military retirement and survivor benefits.

5.  On an unknown date, the applicant remarried.

6.  During the processing of this case, a staff member of the Board contacted the Defense Finance and Accounting Service (DFAS) to confirm the applicant's enrollment in the SBP.  The DFAS official confirmed that the applicant elected spouse and children SBP coverage at the time of his retirement.  He also stated that the applicant was currently enrolled in the SBP and making payments for spouse only coverage given his children had reached the maximum age of eligibility.

7.  The applicant provides a letter of support from his current spouse in which she indicates that she makes no claim against the SBP provided by her husband to his former spouse as mandated in the divorce decree.  She provides her consent to give up said SBP benefits.

8.  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.  

9.  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.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center.  

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

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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.  

DISCUSSION AND CONCLUSIONS:

1.  By law, incident to a proceeding of divorce, a member with existing SBP coverage has one year to provide an annuity to a former spouse by making such an election.  The applicant failed to make a written request to change his SBP coverage to former spouse coverage within one year of the divorce.

2.  The evidence of record confirms the applicant initially elected SBP coverage for “spouse and children” at the time of his retirement.  Subsequently, the applicant and his former spouse were divorced on 26 January 2007.  Both parties agreed to comply with the terms of the Separation Agreement, which included the former spouse’s entitlement to continued SBP coverage and this was included and incorporated into the final divorce decree.  Premiums are still being deducted from the applicant's retired pay for "spouse only" coverage through the present as evidenced by the applicant's DFAS record.  In addition, the applicant's new spouse has relinquished her rights to the applicant's SBP and consented to provide the former spouse this benefit as stipulated in the settlement agreement and final divorce decree.

3.  In establishing the SBP, it was the intent of Congress to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for almost 19 years of his 21 year military career.  The court ordered the applicant to pay the former spouse 100% of his military retirement benefits and further stipulated that the former spouse shall be entitled to claim survivor benefits.

4.  Further, SBP premiums have been continually deducted from the applicant's retired pay subsequent to the date of his divorce through the present.  Therefore, in the interest of justice and equity, it would be appropriate to correct the applicant's record to comply with the divorce decree by providing SBP coverage for his former spouse at this time.
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 the applicant changed his spouse SBP coverage to former spouse coverage on 26 January 2007, in conjunction with the date of his divorce.




      _______ _   _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)                                         AR20090006822





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ABCMR Record of Proceedings (cont)                                         AR20090006822



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