IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20100000357 


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 changed his category of participation in the Survivor Benefit Plan (SBP) from spouse to former spouse coverage.

2.  The applicant states that upon notification of his eligibility for retired pay at age 60 he elected immediate Reserve Component SBP (RCSPB) coverage for his spouse (P____ J. Y____), in the full amount.  He adds that he retired from the Army on 31 May 2005 and he was still married at the time.  He also states that:

   a.  he was divorced in November 2005, and he forwarded a copy of his divorce decree to the Defense Finance and Accounting Service (DFAS) in April 2006, and requested that his SBP be changed to former spouse coverage.  He adds that RCSBP payments continued to be deducted from his retired pay and are still being deducted.

	b.  he married C_____ A. Y____ in April 2006 and they divorced in April 2009.

   c.  in January 2009, P____ J. Y____ informed him that DFAS told her she was not covered by his SBP.  He adds that he contacted DFAS and found this to be true, he was informed that DFAS could not change his SBP coverage to former spouse, and he was advised to apply to the Army Board for Correction of Military Records (ABCMR).


3.  The applicant provides two marriage certificates and two divorce decrees for each of his two marriages, and eleven retiree account statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard of the United States and Rhode Island Army National Guard on 14 May 1981.  His date of birth is recorded as 20 September 1955.

2.  Headquarters, Rhode Island National Guard, Cranston, Rhode Island, memorandum, dated 4 September 2002, notified the applicant that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, chapter 1223.

3.  On 17 September 2002, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was married to P____ J. Y____, her date of birth was 27 January 1957, they were married on
27 November 1982, and he elected to participate in the RCSBP with spouse only coverage, option C, full base amount.  The DD Form 1883 shows that the decision made with respect to participation in the SBP was a permanent irrevocable decision.  The applicant, his spouse, and a witness each placed their signature on the form.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from the Army and Army National Guard on 31 May 2005 after serving honorably on active duty for a total of 20 years, 4 months, and 24 days.  He was placed on the Retired List effective 1 June 2005.

5.  In support of his application, the applicant provides the following documents:

	a.  a State of Rhode Island and Providence Plantations, Certificate of Marriage, that shows the applicant and P____ J. C_____ married on
27 November 1982.

   b.  a State of Rhode Island and Providence Plantations, Family Court Final Judgment, dated 19 January 2006, and Marital Settlement Agreement, dated
1 August 2005, in the marriage of the applicant and P____ J. Y____.  The documents show, in pertinent part, that with respect to the applicant's military retirement pension, the applicant has the exclusive use of and title to the pension.  However, the document also shows the applicant was to continue to maintain the SBP for the benefit of P____ J. Y___ for so long as she is eligible, and that the applicant is responsible for paying the cost of the SBP.  The final judgment of divorce was approved on 19 January 2006.

	c.  a State of Rhode Island and Providence Plantations, Certificate of Marriage, that shows the applicant and C_____ A. D______ married on
17 April 2006.  C_____'s date of birth is shown as 4 November 1961.

   d.  a State of Rhode Island and Providence Plantations, Family Court Final Judgment, dated 30 April 2009; Interlocutory Decision Pending Entry of Final Judgment, dated 29 January 2009; and Marital Settlement Agreement, dated
23 January 2009, in the marriage of the applicant and C_____ A. Y____.  The Marital Settlement Agreement shows, in pertinent part, that with respect to their pension/retirement plans, "[t]o the extent that either party has any pension, retirement, deferred savings or other retirement account, the [applicant] is awarded all right, title, and interest in and to his pension and/or retirement accounts and the wife is awarded all right, title and interest in and to her pension and/or retirement accounts."  This document is silent with respect to the applicant's SBP.  Paragraph 14 (Mutual Releases) shows "[t]he parties mutually release each other from any and all claims and demands of every nature which either had, now has or hereafter may have for or by reason of anything whatsoever from the beginning of the world to the day and date of these presents,..."  The interlocutory decision was ordered, adjudged, and decreed on 29 January 2009 and the final judgment of divorce was approved on 30 April 2009.

	e.  a letter under the signature of C_____ A. (D______) Y____, received at the ABCMR on 16 December 2009, in which she acknowledges that the applicant's former spouse P____ J. Y____ was married to the applicant for over 
24 years, was the designated beneficiary of the applicant's SBP at the time he retired from the Army, and was awarded the applicant's SBP when they divorced in January 2006.  Ms. D______ adds that she reviewed the applicant's divorce decree prior her marriage to the applicant in April 2006, she was aware of the former spouse's entitlement to the applicant's SBP, and there was never an understanding or expectation that she would be entitled to his SBP.  
Ms. D______ states that the applicant forwarded the divorce decree to DFAS in 2006, despite the fact that DFAS states it never received the document.  She confirms that she and the applicant were divorced in April 2009, she declines the applicant's SBP, and requests that the Board correct the record to show the applicant's former spouse P____ J. Y____ is entitled to the applicant's SBP.



   f.  eleven Retiree Account Statements spanning the period from 5 April 2007 to 3 September 2009 show the following:

       (1)  four statements dated 5 April, 10 September, 18 December 2007, and 2 December 2008 show the applicant was enrolled in the SBP with spouse only coverage, full base amount.  The SBP Coverage section of the document shows the spouse's date of birth as 27 January 1957.  In the Arrears of Pay Beneficiary Information section, P____ J. Y____ is listed as the applicant's wife.
   
       (2)  three statements dated 17 April, 18 April, and 8 May 2009 show that SBP costs were not collected during this period.  The SBP Election sections of the statements contain the entry, "No SBP Election Is Reflected On Your Account."  In the Arrears of Pay Beneficiary Information section, P____ J. Y____ is listed as the applicant's wife.

       (3)  the statement dated 9 June 2009 shows the applicant was enrolled in the SBP with spouse only coverage, full base amount.  The SBP Coverage section of the document shows the spouse's date of birth as 4 November 1961.  In the Arrears of Pay Beneficiary Information section, P____ J. Y____ is listed as the applicant's wife.

       (4)  the statement dated 15 June 2009 shows that SBP costs were not collected during this period.  The SBP Coverage section of the document shows the entry "See 'Message Section'."  In the Arrears of Pay Beneficiary Information section, P____ J. Y____ is listed as the applicant's wife.  The Message Section, in pertinent part, contains the entry, "This Statement Represents An SBP Credit."

       (5)  two statements dated 29 July and 3 September 2009 show the applicant was enrolled in the SBP with spouse only coverage, full base amount.  The SBP Coverage section of the document shows the spouse's date of birth as 4 November 1961.  In the Arrears of Pay Beneficiary Information section, P____ J. Y____ is listed as the applicant's wife.

6.  On 14 March 2009, the applicant submitted a letter to Senator Jack Reed, United States Senate, and requested assistance in correcting his category of SBP coverage from spouse to former spouse.

7.  A DFAS, Indianapolis, Indiana, letter, dated 23 June 2009 from the Deputy Director Operations to the Honorable Jack Reed, states that the applicant originally elected spouse SBP coverage for P____ J. Y____; however, she lost her eligibility for spouse SBP upon their divorce on 19 January 2006.  He also states that the applicant indicated he elected former spouse coverage; however, a search of DFAS records did not confirm receipt of any notification of divorce or request to elect former spouse coverage, or a "deemed election" from the former spouse within 1 year of the divorce, and that she is not entitled to the SBP annuity:  

	a.  He states the applicant married C_____ A. Y____ on 17 April 2006; however, DFAS was not notified within the first year of marriage.  He notes that she automatically became an eligible beneficiary and the monthly premiums should have begun May 2007.

	b.  The letter contains an explanation of SBP premiums that were refunded to the applicant for the period 1 February 2006 to 30 April 2007, and the collection of SBP premiums beginning 1 April 2009.

8.  Public Law 92-425, the Survivor Benefit Plan, 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.  Retiring members and spouses were to be informed of the SBP options and effects.

9.  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.  Title 10, U.S. Code, Chapter 73, provides that a 
spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

10.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 category of participation in the SBP from spouse to former spouse coverage in a timely manner because his divorce decree required him to do so, he submitted his divorce decree to DFAS to change his SBP category, and he continued to make SBP payments.

2.  Records show the applicant elected to participate in the SBP with spouse only coverage, full base amount, and that he retired from active duty on 31 May 2005.

3.  The evidence of record shows the applicant's first spouse P____ J. Y____ was awarded an interest in the applicant's SBP when they divorced on               19 January 2006.

4.  By law, incident to a proceeding of divorce, a member has 1 year to provide an annuity to a former spouse by making such an election.  

5.  The law also permits the former spouse concerned to request a former spouse SBP coverage election be deemed to have been made within 1 year of a date of a court order of divorce:

	a.  notwithstanding the applicant's statement and that of his second former spouse, there is no independent evidence to show the applicant took any action to request a change to his SBP election from spouse to former spouse coverage within 1 year of the divorce decree that was issued on 19 January 2006, as is required by law.

   b.  there is no evidence of record to show the applicant's first former spouse P____ J. Y____ made a written request for a deemed election to DFAS for former spouse SBP coverage based on the divorce decree.

6.  The evidence of record shows the applicant remarried and his second spouse (C_____ A. Y____) became eligible for the spouse SBP coverage, as SBP coverage is governed by category; however, they also later divorced  There is no evidence of record to show the applicant took any action to request a change to his SBP election from spouse to former spouse coverage within 1 year of the divorce decree that was issued on 30 April 2009.

7.  The evidence of record shows that the applicant's second former spouse has submitted a statement to this Board acknowledging she understands the applicant's first former spouse (P____ J. Y____) has an interest in the applicant's SBP.  Moreover, in her statement, the second former spouse declines the applicant's SBP and, in effect, relinquishes any interest she may have in the SBP to the first former spouse.

8.  There is no evidence of record that shows the applicant remarried subsequent to his divorce on 30 April 2009.  Even had he remarried, spousal SBP would not yet have vested in a new spouse.

9.  The evidence of record shows that SBP costs were consistently collected from the applicant's retired pay beginning the effective date of his retirement and up until the time he initiated a Congressional inquiry to correct the category of his SBP coverage.  In addition, the applicant's retired pay statements show that his first former spouse's date of birth was listed on his SBP coverage through (at least) 2 December 2008.

10.  It is logical to presume that if the applicant had intentions to disregard the court's decree to continue SBP protection for his first former spouse, he would have discontinued premium payments or changed his designated SBP beneficiary (i.e., the date of birth).  However, the evidence of record shows the applicant did not do this.  A change did not occur in his records until after he submitted a Congressional inquiry to correct his SBP category to former spouse coverage, whereupon, DFAS officials administratively changed the date of birth based on his marital status at that time.

11.  Consequently, the applicant's continued payment of SBP premiums, his designating his first former spouse (by date of birth) as the SBP annuitant, his attempts to change the category of his SBP to former spouse coverage, and his second former spouse's written statement relinquishing any interest in the SBP appear as the overriding issues in this case.

12.  Thus, an injustice has occurred in this case and, as such, relief should be granted.  Therefore, in view of all of the foregoing, the applicant's record should be corrected to show that he changed the category of his SBP coverage from spouse to former spouse, full base amount, on 19 January 2006.  As a result of this change, the applicant's first former spouse (P____ J. Y____), having a date of birth of 27 January 1957, is his SBP beneficiary.

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 changed the category of his SBP coverage from spouse to former spouse, full base amount, on 19 January 2006;

	b.  showing his designated SBP beneficiary is his first former spouse
(P____ J. Y____) having a date of birth of 27 January 1957; and

   c.  advising the applicant DFAS will be instructed to collect all SBP premium costs due based on the SBP premiums he was reimbursed (i.e., 
from 1 February 2006 to 30 April 2007), and any other SBP premiums that may be 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)                                         AR20100000357



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Re