IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007853 


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."

2.  The applicant states that upon finalizing his divorce judgment, his former spouse's attorney advised his attorney that they would submit the divorce decree to the military.  He supplied the proper address and contacts and took no further action.  In mid 2009, he discovered that the submission of the SBP designee had not been made in the allotted time.  His current spouse has relinquished her SBP benefit to the former spouse.

3.  The applicant provides the following documents:

* a notarized letter from his current spouse
* a copy of his divorce decree
* a copy of his spousal agreement
* a copy of his marriage license
* a copy of his retiree account statement

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 11 April 1948 and married his spouse Sandra on 8 March 1971.

2.  Having had prior enlisted service, his records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office with concurrent call to active duty on 21 January 1972.

3.  He was honorably released from active duty on 14 July 1978 and he was transferred to the USAR Control Group (Standby Reserve).  He subsequently served in various staff and leadership positions and attained the rank/grade of lieutenant colonel (LTC)/O-5.

4.  On 28 June 1996, Headquarters, USAR Command, Atlanta, GA, published Orders 96-180-029 reassigning the applicant to the Retired Reserve.

5.  On 12 January 1999, he and his spouse Sandra entered into a property settlement agreement wherein he agreed that his military pension would be divided equally and that he would irrevocably elect to participate in the SBP and would name his spouse Sandra as the irrevocable beneficiary.  This agreement was incorporated into their final divorce judgment, also dated 12 January 1999.

6.  On 20 September 1999, he married his current spouse Charlene.

7.  On 28 June 2000, the USAR Personnel Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of qualifying Reserve service and would be eligible for retired pay upon application at age 60.

8.  The notification letter also informed him of his entitlement to participate in the Reserve Component SBP (RCSBP) within 90 days from the date he received this letter.  However, there is no indication he made an election within the allotted time.

9.  On 11 February 2003, he submitted a DD Form 2656-5 (RCSBP Election Certificate) wherein he indicated he was married to Charlene.  He elected to provide an immediate annuity, option C, for spouse coverage based on the full amount.  However, there is no indication this form was accepted or processed by the Defense Finance and Accounting Service (DFAS).

10.  On 11 March 2008, U.S. Army Human Resources Command, St. Louis, MO, published Orders P03-803199 retiring him and placing him on the Retired List in his retired rank/grade of LTC/O-5 effective 11 April 2008, his 60th birthday.

11.  His retiree account statement shows he currently has SBP coverage for spouse only.  However, no RCSBP premiums are being deducted.

12.  He submitted a notarized letter, dated 15 January 2010, signed by his current spouse wherein she states that she willingly relinquishes the SBP coverage to the applicant's former spouse Sandra.

13.  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.

14.  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 Reserve members).

15.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  At the time, a member must have made the election within 90 days of receiving the Notification of Eligibility for Retired Pay at Age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.

16.  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.  The applicant contends 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 he was married in March 1971 and was divorced in January 1999.  His divorce decree stipulated he would make a former spouse SBP election.  Upon receipt of his 20-year letter in June 2000, he did not make an election to participate in the RCSBP.  In effect, he elected to defer his election to age 60.

3.  In February 2003, although not entitled to do so, he made an election to participate in the RCSBP, option C, for immediate spouse coverage at the full base amount.  It appears this election was not received and/or accepted for processing.

4.  Upon retirement at age 60, he began paying SBP premiums at the spouse coverage rate, but not RCSBP add-on premiums.  This suggests that his retirement application, not the DD Form 2656-5 he submitted in February 2003, triggered the SBP spouse coverage and premium.  Otherwise, he would have had to pay the RCSBP cost.

5.  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/divorce decree.  Additionally, his current spouse relinquishes any entitlements to her husband's SBP in favor of the former spouse.

6.  Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" and, as such and only as a matter of equity, his record should be corrected to show he did so at the time he applied for retirement 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 elected SBP coverage for former spouse in connection with his submission of his retirement application 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)                                         AR20100007853



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)