IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090014710 


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" coverage at the time of their divorce.

2.  The applicant states he and his former spouse were not aware of the requirement to make a change within 1 year of their divorce.  His final divorce decree stipulated that his former spouse would be an SBP beneficiary.  He continued to make SBP payments even after his remarriage.  All parties, including the former and present spouses, understand and agree to the change of coverage from spouse to former spouse.

3.  The applicant provides a self-authored statement, dated 25 July 2009; a copy of a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 7 August 2009; a signed and notarized statement from his current spouse, dated 21 July 2009; a copy of a letter from the Office of the Deputy Chief of Staff, G-1, dated 26 June 2009; a copy of a self-authored letter to the SBP Board, Army Retired Services, Alexandria, VA, dated 5 June 2009; a copy of his final decree of divorce, dated 1 September 2005; a copy of his property settlement agreement, dated 18 August 2005; a copy of his current marriage certificate, dated 3 July 2006; and a copy of his Retiree Account Statement, dated 2 December 2009.


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he married his first spouse S____ on 2 July 1961.

2.  He was appointed as a second lieutenant in the Signal Corps of the Army and entered active duty on 8 June 1963.  He served in various command and staff positions, within and outside continental United States, and was promoted to lieutenant colonel (LTC).

3.  In March 1984, he submitted a request for voluntary retirement.  In connection with his request, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and indicated that he was married and had dependent children. He further elected spouse and children SBP coverage based on the full amount.  A copy of his DA Form 4240 is not available for review with this case; however, the Defense Finance and Accounting Service (DFAS) database confirms this election.

4.  He was honorably retired on 30 April 1984 and he was transferred to the Retired List in his retired rank of LTC on 1 May 1984.

5.  On 18 August 2005, the applicant and his first spouse entered into a property settlement agreement wherein he agreed to sign all necessary documents to designate her as SBP beneficiary.  The court incorporated their settlement agreement into their divorce decree on 2 September 2005.

6.  There is no indication in the applicant's records that he forwarded a copy of the divorce decree to DFAS or that his first spouse requested a deemed election within 1 year of their divorce.

7.  On 3 July 2006, the applicant married his second spouse, I____.

8.  The applicant submits the following:

	a.  A signed and notarized DD Form 2656-1, dated 7 August 2009, wherein he requested to change his SBP coverage from spouse to former spouse.  His former spouse and a witness signed this form.

	b.  A signed and notarized statement, dated 21 July 2009, from his current spouse wherein she states that she is currently designated as the legal beneficiary of the applicant's SBP, but she relinquishes any entitlements to her husband's SBP in favor of the former spouse.

	c.  A copy of a letter, dated 26 June 2009, from the Deputy Chief of Staff, G-1, informing him that his request for a change in his SBP election from spouse to former spouse could not be favorably considered because neither he nor his former spouse took action within 1 year of their divorce to affect a change in the SBP coverage.

9.  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.

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

11.  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.

12.  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:

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

2.  The evidence of record shows that prior to his retirement in 1984, the applicant elected full SBP spouse and children coverage.  He and his former spouse were divorced on 1 September 2005 and their settlement agreement stipulated that he would take necessary action to designate her as his SBP beneficiary.  He did not submit the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.
3.  SBP elections are made by category, not by name.  Once the applicant and his first spouse were divorced, she was no longer his spouse.  Nevertheless, he was required to make a former spouse election as stipulated in the settlement agreement and continued to pay SBP premiums.  Additionally, his current spouse relinquishes any entitlements to her husband's SBP in favor of the former spouse.

4.  Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" and, as such, his record should be corrected to show he did so and that his request was received and processed by DFAS in a timely manner.

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 changed his SBP coverage from "spouse" coverage to "former spouse" coverage within 1 year of their divorce in September 2005 and that his request was received by DFAS 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)                                         AR20090014710



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ABCMR Record of Proceedings (cont)                                         AR20090014710



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