BOARD DATE: 14 December 2010
DOCKET NUMBER: AR20100014512
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 Survivor Benefit Plan (SBP) election to show "former spouse" vice "spouse only."
2. The applicant states he and his former spouse were married for 19 years before divorcing on 21 October 2002. When he retired on 30 April 2002, he elected SBP coverage for spouse only. He neglected to change the coverage to "former spouse" following the divorce, but he has continued to pay his SBP premiums.
3. The applicant provides:
* a typewritten note, dated 30 April 2010
* a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* a copy of his Decree of Divorce, Circuit Court of the County of Prince George, VA
* three Retiree Account Statements
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant is a retired Regular Army Master Sergeant (MSG)/E-8). He retired on 30 April 2002 with 20 years, 8 months, and 13 days of total active service. Upon his retirement, he elected to participate in the SBP and chose "spouse only" coverage.
3. The applicant and his spouse divorced on 21 October 2002 after more than 19 years of marriage. SBP premiums continue to be deducted from his retired pay and the coverage type continues to be "spouse only." The applicant affirms he has not remarried. There is no indication he informed the Defense Finance and Accounting Service (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 their divorce.
4. 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.
5. 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.
6. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
7. 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.
8. 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 April 2002 he elected to participate in the SBP with "spouse only" coverage.
2. In October 2002, the applicant and his spouse were divorced. Neither he nor his former spouse notified DFAS of the divorce or requested to change SBP coverage from "spouse only" coverage to "former spouse" coverage.
3. SBP elections are made by category, not by name. Once the applicant and his spouse were divorced, she was no longer his spouse. Nevertheless, the applicant has not remarried, yet continues to pay SBP premiums, which is indicative of the fact that he intends to provide an annuity for his former spouse.
4. Therefore, there is sufficient evidence to show that the applicant's intent was to change the SBP coverage from "spouse" to former spouse" and, as such, his record should be corrected to show he did so in a timely manner 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 changed his SBP coverage from "spouse only" coverage to "former spouse" coverage within one year of his divorce in October 2002, 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) AR20100014512
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100014512
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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