IN THE CASE OF:	

		BOARD DATE:	  06 April 2010

		DOCKET NUMBER:  AR20090015660 


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 timely changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse."

2.  The applicant states that prior to his retirement, he elected SBP coverage for his spouse.  However, they were divorced in December 2007.  He provided the Defense Finance and Accounting service (DFAS) with a copy of their divorce decree around April 2009.  In August 2009, his former spouse received a letter from DFAS stating she is not eligible for SBP coverage.  He adds that he was unaware of the requirement to notify DFAS within 12 months of his divorce and believed future changes to his SBP coverage were not allowed.

3.  The applicant provides a copy of their divorce decree, dated 20 December 2007; a copy of the DFAS letter, dated 5 August 2009; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2005; a copy of his current marriage license and certificate, dated
20 July 2008; and copies of his Retiree Account Statement, dated 25 February,
7 August, and 2 December 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he married his first wife, Susana, on 21 October 1974.


2.  Having had prior service, his records also show he was appointed as a second lieutenant, executed an oath of office, and entered active service on 12 May 1979.  He served in various staff and command positions within and outside continental United States and attained the rank/grade of colonel (COL)/O-6.

3.  Prior to his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 23 May 2005.  He indicated he was married and elected full SBP spouse coverage.  He was still married to Susana at the time he made this election.

4.  On 30 June 2005, he retired by reason of sufficient service for retirement and on 1 July 2005 he was transferred to the retired list in his retired rank of COL.  He was credited with 31 years, 1 month, and 22 days of total active service.

5.  On 20 December 2007, he and Susana were divorced.  His divorce decree stipulated that he would continue to elect his former spouse as the sole beneficiary of his SBP, based on the full amount of his retired pay, and provide a copy of this election to his former spouse.

6.  There is no indication he informed DFAS of his divorce or that his former spouse made a deemed election to change SBP coverage from "spouse" to "former spouse" within 1 year of the date of the divorce.

7.  On 20 May 2008, the applicant married his second spouse, Mabel.

8.  On 5 August 2009, by letter, a DFAS official notified his former spouse that she lost her eligibility as an SBP beneficiary upon divorce.  The official also informed her that there was no evidence her husband had requested a change of election within one year of their divorce or that she made a deemed election within one year of the divorce.

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.  Elections are made by category, not by name.

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.


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

12.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

13.  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.

14.  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 evidence of record shows that when the applicant retired in 2005, he elected to participate in the SBP for spouse coverage.  After retirement, in December 2007, he and his first spouse were divorced.  Their divorce decree obligated him to change SBP coverage from spouse coverage to former spouse coverage.  He did not do so and she did not submit a deemed election within one year of their divorce.

2.  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.  He did not make a former spouse election within one year of the divorce as required by law.  Her attempt to make a former spouse deemed election occurred in 2009, more than one year after the divorce and was therefore not timely.  His premiums were suspended but spouse coverage remained.

3.  Furthermore, in July 2008, he remarried.  Therefore, since his spouse coverage continued, his current wife is the legal beneficiary of his SBP.  The 
ABCMR may not correct his records to effectively award the former spouse SBP coverage, for doing so would deprive his current spouse of a property interest without the due process of law.

4.  The ABCMR can, however, reconsider his request if his current spouse is a party in a lawsuit ordering her to give up her right to the SBP or that the former spouse is declared as the proper recipient of the SBP annuity with greater rights than the current spouse.  In the alternative, the ABCMR would reconsider his request if accompanied by a signed, notarized declaration from his current spouse renouncing any claim 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.  He 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)                                         AR20090015660



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ABCMR Record of Proceedings (cont)                                         AR20090015660



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