IN THE CASE OF:
BOARD DATE: 30 November 2010
DOCKET NUMBER: AR20100012724
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 to former spouse coverage.
2. The applicant states his separation agreement requires him to provide SBP benefits to his former wife.
3. The applicant provides the following:
* Statement from the applicant's representative, dated 25 March 2010
* Marriage Certificate
* Separation Agreement and Property Settlement
* Divorce decree with Modification to Separation Agreement and Property Settlement
* DD Form 1883 (SBP Election Certificate) dated 1 June 1982
* Retiree Account Statements (RASs)
* Letter from the Defense Finance and Accounting Service (DFAS), dated 17 June 2009
* Designation of Beneficiary information, dated 18 May 2009
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he entered the Army National Guard on 30 August 1961. His date of birth is listed as 14 January 1939.
2. His license and certificate of marriage show he was married on 8 March 1962.
3. On 1 June 1982, the applicant completed a DD Form 1883 electing full immediate spouse and children coverage under the Reserve Component SBP (RCSBP).
4. Orders P-12-307521, dated 3 December 1998, show the applicant was placed on the retired list on 14 January 1999, in the grade of major (MAJ)/04.
5. In a "Separation Agreement and Property Settlement" dated 18 August 2004 and notarized on 13 June 2005, the applicant's wife acknowledged as long as she was the spouse of the applicant, unless she consented otherwise, she would become entitled to receive all or a portion of his death benefits. On 11 January 2007, the applicant divorced. There is no mention of the SBP in the divorce decree. However, in a "Modification to Separation Agreement and Property Settlement," dated 23 March 2010, the applicant and his former spouse agreed she would be named beneficiary for his SBP.
6. The letter from DFAS informed the applicant that since the statutory filing deadline of one year for former spouse coverage had expired, an election could not be deemed to have been made and former spouse coverage would not be implemented.
7. In a letter from the applicant's representative, he stated the applicant, his spouse, and the attorney who drafted the separation agreement were under the impression that the separation agreement was adequate to divide the applicant's military retired pay. He also believed it was adequate enough to pay and to create a designation of beneficiary to protect his SBP death benefits. However, the representative acknowledged that there must be a court order to divide retired benefits. He offered that a motion in the divorce lawsuit asking the court to enter an order by consent has been filed.
8. The applicant's RASs show deductions for SBP costs. His RAS, dated
2 December 2009, shows that the annuity payable was 55% of his annuity base amount which was $517.53. He has paid 130 months toward his 360 months of paid up RCSBP coverage.
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.
10. 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.
11. 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 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected to participate in the RCSBP for spouse and children coverage when he was married. The applicant and his former spouse were divorced on 12 January 2007, but he continued to pay into the plan. On 23 March 2010, in a Modification to Separation Agreement and Property Settlement, the applicant and his former spouse agreed that she would be named the beneficiary of his SBP.
2. As such, it would be equitable and just to correct the applicant's records to show he voluntarily converted his RCSBP/SBP spouse and child coverage to former spouse and child coverage in a timely fashion.
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 the applicant made a voluntary change in election from spouse and child coverage to former spouse and child on 1 February 2007 and that the request was received 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) AR20100012724
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100012724
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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