BOARD DATE: 18 May 2010
DOCKET NUMBER: AR20090015433
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 that his records be corrected to show his former spouse is entitled to Survivor Benefit Plan (SBP) coverage.
2. The applicant states, in effect, that in 2005 his attorney provided the Defense Finance and Accounting Service (DFAS) the required paperwork to begin the process of ensuring his former spouse was covered by the Uniformed Services Former Spouses' Protection Act (USFSPA) and the SBP as mandated by their divorce decree. He states that upon learning that his former spouse was still listed as his spouse by DFAS, he submitted a DD Form 2656-1 (Former Spouse Coverage Form) and submitted it to DFAS, London, Kentucky. Finally, he states that on 21 September 2008 he received notification from DFAS that his request for former spouse SBP had been denied because neither he nor his spouse deemed election within 1 year of the dissolution of their marriage and his SBP payments were being refunded.
3. The applicant provides copies of his separation and property settlement agreement; dissolution of marriage decree; DD Form 2656 (Data for Payment of Retired Personnel), dated 20 June 1997; and a letter from DFAS Retired and Annuity Pay Branch in support of his application.
CONSIDERATION OF EVIDENCE:
1. Records available to the Board indicate the applicant and his former spouse were married on 15 March 1956. He entered military service in the Regular Army on 5 March 1955 and served continuously until his retirement for length of service on 1 January 1977. The applicant apparently elected spouse SBP at that time.
2. On 10 January 2005, a judgment of dissolution was ordered. The applicant's separation and property settlement agreement, dated 3 November 2004, shows on page 4 that he and his former spouse agreed to make an election of an annuity under the SBP and the applicant agreed to execute any documents necessary to make or extend the election of his former spouse as beneficiary.
3. The applicant submitted a copy of a DA Form 2656-1, dated 21 July 2008, showing he requested a change in election coverage due to divorce from spouse to former spouse.
4. On 27 September 2008, DFAS Retired and Annuity Pay Branch notified the applicant by letter to tell him an adjustment was being made in the SBP portion of his retired pay based on receipt of his divorce decree. The memorandum from DFAS also explained to the applicant that neither he nor his former spouse deemed former spouse coverage within 1 year of the divorce and he was due a refund of overpaid SBP premiums from the first month after his divorce through the current work month.
5. The applicant submitted an electronic mail message, dated 2 May 2010, that states he has not remarried.
6. Public Law 97-252, the USFSPA, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
7. Public Law 98-94 enacted 24 September 1983 established former spouse coverage for retired members.
8. 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 had not yet made an SBP election.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. As part of the divorce settlement agreement, the applicant was required to elect SBP coverage for his former spouse. He states he provided DFAS with a copy of his divorce decree and to date has not remarried; however, DFAS maintains the applicant did not notify them within 1 year of the divorce of his election for former spouse coverage as required by the SBP statute.
2. Although he did not notify DFAS in a timely manner, he continued to pay SBP premiums. Because there are no other parties in whom the SBP has vested interest, it would be appropriate and serve the interest of justice, compassion, and equity to grant the requested relief.
3. There is sufficient evidence to show that the applicant's intent was to change the 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. DFAS should recoup the previously refunded SBP premiums from the effective date of the divorce decree, 10 January 2005.
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:
a. showing the applicant made a request for a change to former spouse SBP coverage within 1 year of his divorce and that DFAS effected the change and
b. by advising the applicant that DFAS will be instructed to collect any SBP costs due as a result of this correction.
_________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) AR20090015433
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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