BOARD DATE: 24 November 2009
DOCKET NUMBER: AR20090010241
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 he elected Survivor Benefit Plan (SBP) former spouse coverage in a timely manner.
2. The applicant states he was not informed by his lawyer that a separate written election in writing had to be made within one year from the date of his divorce. He states that he learned from the Defense Finance and Accounting Service (DFAS) that he had missed the cutoff date by 23 days. He states that he faxed and mailed documentation and called DFAS on 2 June [2009] and was informed to call the Army Board for Correction of Military Records (ABCMR).
3. The applicant provides a copy of a letter to DFAS (Retired Pay), dated 28 May 2009, and a Final Decree of Divorce, dated 16 May 2008, in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he enlisted in the Regular Army (RA) on 10 August 1973. He retired from the RA on 31 August 1995, in the rank/grade of sergeant first class (SFC)/E-7, after completing 22 years and 21 days of active service.
2. The applicant's records indicate he was married on 1 May 1978. At the time of retirement, he elected "spouse only" SBP coverage.
3. The applicant's divorce decree, dated 16 May 2008, states, "The Court further finds that at the present time (applicant's former spouse) should be named beneficiary under the Armed Services SBP and that (the applicant's) election to provide the SBP benefits to (applicant's former spouse) should be continued and maintained in full force and effect and should not be altered or withdrawn by (the applicant) during his lifetime."
4. A telephone conversation between a member of the Board staff and a staff member at DFAS revealed the retiree's SBP election status to be "no beneficiary," effective 16 May 2008.
5. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members on active duty 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. Changes in SBP options are not authorized except in specific instances, or authorized by law.
6. Public Law 97-252, dated 8 September 1982, established SBP for former military spouses.
7. Public Law 99-661, dated 14 November 1986, permitted divorce courts 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.
8. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 or as part of a proceeding of divorce.
DISCUSSION AND CONCLUSIONS:
1. The divorce decree from the applicant's divorce, dated 16 May 2008, shows that the applicant's former spouse should be named his SBP beneficiary and that the applicant's election to provide the SBP benefits to his former spouse should be continued and maintained in full force and effect and should not be altered or withdrawn by him during his lifetime.
2. The applicant contends he was not told by his lawyer that he must make a written election for former spouse SBP coverage, in effect, causing him to not submit an election for former spouse coverage in a timely manner. However, evidence indicates he attempted to make a former spouse SBP election and submitted it to DFAS several days past one year from the date of his divorce decree, thus exceeding the timeframe prescribed by law.
3. As such, it would be in the interest of justice to show that the applicant made a former spouse SBP election within one 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, pursuant to the requirements of a court order, within one year of his divorce decree and that it was timely received and processed by DFAS.
__________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) AR20090010241
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