IN THE CASE OF:
BOARD DATE: 24 February 2011
DOCKET NUMBER: AR20100020988
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 his Survivor Benefit Plan (SBP) election be changed from spouse to former spouse coverage.
2. He states he:
* was divorced on 1 May 2008
* wasnt aware that there would be a change in his spouses SBP status
* and spouse went to Fort Drum Personnel Center to update his records after their divorce
* updated everything, but the SBP program was never discussed
* found out recently he should have made a change from spouse to former spouse coverage
3. He provides:
* Divorce decree
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage)
* DD Form 2656-6 (SBP Election Change Certificate)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 12 June 1973. He was married on 19 August 1977.
2. On 17 August 1992, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and elected to participate in the SBP for spouse coverage at a reduced amount.
3. At the completion of 20 years of service, he retired from active service on 30 June 1993.
4. He was divorced on 1 May 2008. The divorce decree stated that he and his spouse entered a written agreement on 3 January 2008; agreement is not available. The SBP is not mentioned in the divorce decree.
5. On 6 August 2010, he submitted a DD Form 2656-6 and DD Form 2656-1 to change his SBP spouse coverage to former spouse coverage. The DD Form 2656-1 indicates he was not married as of the date it was signed.
6. 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.
7. 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.
8. 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. The applicants contentions in regard to changing his SBP coverage from spouse to former spouse are acknowledged and determined to have merit.
2. He retired on 30 June 1993 and elected to enroll in the SBP for spouse coverage at a reduced amount. He was married to his former spouse at that time.
3. He divorced on 1 May 2008.
4. His contention that he recently found out he should have made a change from spouse to former spouse coverage is supported by the fact that he submitted a DD Form 2656-6 and DD Form 2656-1 on 6 August 2010 to change his SBP coverage from spouse to former spouse coverage. Further, since it appears he has not remarried there is no one with a superior vested interest in spouse SBP.
5. Considering there is evidence to show it is the applicants intent to provide SBP coverage for his former spouse, it would be equitable to correct his records to show he made a written request to change his SBP coverage to former spouse coverage within the time frame provided by law.
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 had requested his SBP coverage be changed from spouse coverage to former spouse coverage 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) AR20100020988
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100020988
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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