BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018790 


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, in effect, he was informed by the Defense Finance and Accounting Service (DFAS) that his former spouse had failed to submit documents necessary for requesting former spouse SBP coverage within the required 12 months after their divorce in 2005.  He continues by stating that his wife felt she had submitted the document requested by DFAS to include a copy of the final divorce decree, which indicates the applicant agreed to elect his wife for former spouse coverage under the SBP.  He also states that in about 2007 he elected to cancel SBP.

3.  The applicant provides a copy of their settlement agreement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 


has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was appointed as a Reserve commissioned officer in the Medical Services Corps, effective 19 May 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the Regular Army on 31 January 2001, in the rank of major after completing 23 years, 4 months, and 14 days of active service.

3.  The applicant's records indicate he was married at the time of his retirement from the military.

4.  A telephone conversation between a member of the Board's staff and a staff member at DFAS revealed the retiree's SBP election status was "spouse coverage" (reduced) at the time of the applicant's retirement on 1 February 2001.  Per conversation, the SBP election status was subsequently changed to "no beneficiary" effective 7 September 2005.

5.  In the processing of this case, a member of the staff contacted the applicant by telephone to inquire about whether he had remarried since his divorce in 2005, and if so, on what date.  The applicant did not provide an affirmative or negative response, rather he asked, "what would happen if he and his former spouse remarried?"  He then indicated that his former spouse and he were considering reconciliation and possible remarriage.  The Board staff discussed this scenario with legal and DFAS.  A staff member provided a response per e-mail to the applicant explaining how DFAS indicated they would handle such an action.  The Board staff member also asked the applicant in the e-mail whether he wanted the Board to continue processing his application or if he wanted to withdraw his application.  The applicant did not respond to the request.

6.  The applicant's settlement agreement, signed by the applicant and his former spouse in July 2005, shows the parties agreed the applicant would continue to elect SBP coverage under the provisions of "former spouse coverage."  The settlement agreement further stated that the former wife's continuation in the SBP as a former spouse shall be included in the court order.

7.  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.

8.  Public Law 97-252, dated 8 September 1982, established SBP for former military spouses.

9.  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.

10.  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.

11.  Title 10, U.S. Code, section 1450 (under Public Law 98-525, dated
19 October 1984) provides, in pertinent part, that if an individual is required to elect to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

	a.  a written request, within one year of the date of the court order or filing involved, from the former spouse concerned requesting that such an election be deemed to have been made; and

   b.  a copy of court order or other official statement, either: 

   (1)  copy of the court order, regular on its face, which requires such 
election or incorporates, ratifies, or approves the written agreement of such person; or

   (2)  a statement from the clerk of the court (or other appropriate official) 
that such agreement has been filed with the court in accordance with applicable State law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's settlement agreement, signed by the applicant and his former spouse in July 2005, shows the parties agreed that the applicant would continue to elect SBP coverage under the provisions of former spouse coverage.  The settlement agreement further stated that the former wife's continuation in the SBP as a former spouse shall be included in the court order.

2.  There is no available evidence showing the applicant ever submitted or intended to submit a request for change to DFAS electing former spouse coverage prior to the one year anniversary date following his divorce.  While, he elected spouse coverage at the time of his retirement, DFAS records indicate his SBP changed to "no beneficiary" effective 7 September 2005.

3.  Based on the applicant's indication he is considering reconciliation with his former spouse and his failure to respond to the Board staff's inquiry regarding whether he wished to withdraw his application, it is recommended the applicant's request for instatement of former spouse coverage be denied at this time.
 
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)                                         AR20090018790



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ABCMR Record of Proceedings (cont)                                         AR20090018790



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