IN THE CASE OF:
BOARD DATE: 13 April 2011
DOCKET NUMBER: AR20100016067
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 military records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states he and his former spouse both failed to turn in their divorce decree to change the SBP from spouse to former spouse.
3. The applicant provides his divorce decree in support of his application.
CONSIDERATION OF EVIDENCE:
1. He married his former spouse N____ on 3 August 1985. Having prior inactive and active service, he was commissioned as a second lieutenant on 24 May 1988 in the Regular Army and entered active duty.
2. His DD Form 2656 (Data for Payment of Retired Personnel) is not available.
3. He retired on 30 November 2007 in the rank of lieutenant colonel.
4. He and N____ divorced on 18 January 2008. The Constituted Pension Order (Military), dated 25 March 2008, states upon the applicant's death his former spouse shall receive survivor's benefits and said benefits shall continue until her own death.
5. He married his current spouse M____ on 5 December 2008.
6. His DD Form 2656-6 (SBP Election Change Certificate), dated 23 July 2010, shows his current coverage is spouse and child. He requested a change in coverage based on his remarriage and he elected to resume the existing level of coverage for his new spouse. Section IV (Requested Change to Coverage) of this form shows he elected spouse and children coverage. Section V (Level of Coverage) of this form shows he elected full retired pay.
7. Defense Finance and Accounting Service records show his current spouse M____ as the SBP beneficiary.
8. On 15 March 2011, the applicant was notified by separate correspondence that a notarized concurrence statement from his current spouse is required prior to granting the requested relief. He was also informed that failure to provide the statement from his spouse would result in his application being processed based upon incomplete information. To date, no response has been received from the applicant.
9. 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.
10. Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
11. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
12. 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.
DISCUSSION AND CONCLUSIONS:
1. No evidence shows he or his former spouse requested that his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit.
2. There is evidence to show he remarried on 5 December 2008. At the 1-year anniversary of this marriage his current spouse acquired a vested interest in the SBP as his legal beneficiary. The ABCMR may not act to terminate her rights to the SBP annuity by granting the former spouse the SBP without her concurrence, as so doing would deprive the applicant's current spouse of a property interest without due process of law.
3. Although he requests correction of his military records to show he changed his SBP coverage to former spouse coverage, he failed to provide a notarized concurrence statement from his current spouse as requested by the Board.
4. Based on the foregoing, there is no basis for granting the requested relief.
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 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) AR20100016067
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100016067
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110005945
The applicant requests the records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 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. The applicant would have to provide a signed and...
ARMY | BCMR | CY2009 | 20090002800
IN THE CASE OF: BOARD DATE: 14 July 2009 DOCKET NUMBER: AR20090002800 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests that his military records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 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...
ARMY | BCMR | CY2010 | 20100020985
The applicant requests the records of her husband, a deceased former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage within 1 year of their divorce and that she is entitled to an SBP annuity based on his death. The applicant states she was denied SBP benefits because his change of election form never made it into his records. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the...
ARMY | BCMR | CY2014 | 20140004574
There is no indication that either the applicant or his former spouse notified DFAS of their divorce within 1 year or that either submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce. The Uniformed Services Former Spouses Protection Act (USFSPA) established SBP coverage for former spouses of retiring members. Title 10, U. S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of...
ARMY | BCMR | CY2010 | 20100007853
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. 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. As a result, the Board recommends that all Department of the Army records of the individual...
ARMY | BCMR | CY2013 | 20130021682
The applicant, the former spouse of a retired service member (RSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) 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. Title 10, U.S. Code,...
ARMY | BCMR | CY2011 | 20110019397
The applicant, a retired former service member, requests that his military records be corrected to show he elected former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) for C____ K____, his former spouse, who will simply be referred to as his former spouse throughout the remainder of these proceedings. The applicant provides copies of his divorce decree; his election for former spouse coverage, dated 3 May 2002; an unsigned DD Form 2293; a letter from his lawyer;...
ARMY | BCMR | CY2012 | 20120020842
The applicant requests reconsideration of his earlier request for correction of his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse coverage within 1 year of their divorce. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where...
ARMY | BCMR | CY2007 | 20070001910
When he remarried and added his present spouse as his SBP beneficiary in 2005, DFAS dropped the SBP election. In support of his request, the applicant provides a copy of his Final Judgment of Dissolution of Marriage, filed 13 December 2002; a copy of their Marital Settlement Agreement, dated 9 October 2002; a copy of a letter the applicant wrote to DFAS, Subject: Correct My Mistake, dated 16 June 2006; a copy of a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor...
ARMY | BCMR | CY2008 | 20080001964
Nevertheless, when the applicant reached age 60 and applied for retired pay, he failed to make the election for former spouse SBP coverage as directed by the divorce decree. Therefore, in the interest of justice it would be appropriate to correct the records to show that the applicant elected SBP coverage for his former spouse and his current spouse concurred with the SBP election made by him. As a result, the Board recommends that all Department of the Army records of the individual...