IN THE CASE OF:
BOARD DATE: 13 April 2011
DOCKET NUMBER: AR20100023748
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 that his records be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states he was divorced on 17 June 2009 and he was under the understanding that his ex-spouse would remain his beneficiary on his SBP. He goes on to state that he has subsequently been informed that because he no longer has a spouse she would not receive his SBP. He continues by stating that his ex-spouse was with him all the years he was in the military and it was always his intention that she receive his SBP. He also states that he has continued to pay his premiums thinking that this benefit would be provided to her even though they were divorced.
3. The applicant provides a copy of his Leave and Earnings Statement and a copy of his Divorce Decree.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 2 February 1945 and he was serving in the Vermont Army National Guard (VTARNG) when he was discharged from the VTARNG in the rank of sergeant and was transferred to the Retired List in the rank of lieutenant colonel on 28 February 2005.
2. The applicant divorced his spouse in Middlebury, Vermont on 17 June 2009 and he has not remarried.
3. In the processing of this case a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) to determine the applicants status in the SBP. Officials at the DFAS indicated the applicant has a full active spouse election and there is no record of him having a former spouse.
4. A review of his records shows that on 3 July 1990 the applicant made a Reserve Component SBP (RCSBP) election for full immediate coverage and indicated that his spouses date of birth was 7 October 1946.
5. A review of the applicants LES, dated 29 January 2011, shows that SBP premiums are being deducted for his spouse (who is now his former spouse).
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.
7. 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.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted on 8 September 1982, established SBP coverage for former spouses of retiring members.
9. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired 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.
DISCUSSION AND CONCLUSIONS:
1. Although there is no evidence to show that either the former spouse or the applicant requested that his SBP coverage be changed to former spouse coverage within the statutory one-year time limit, it appears by his own admission that it was the applicants intent to provide the SBP annuity to his former spouse.
2. The applicant has continued to pay SBP premiums after their divorce, he has not remarried, and no one is currently eligible to receive the annuity. It is reasonable to presume the applicant believed he was paying the premiums. Therefore, his former spouse would be eligible to receive the SBP annuity and no further action was required.
3. Accordingly, it would be equitable to correct his records to show he requested that his SBP coverage be changed from spouse to former spouse coverage 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:
a. showing the FSM made a written request to change his SBP coverage to former spouse coverage on 1 July 2009; and
b. showing the request was accepted and processed by the appropriate office in DFAS 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) AR20100023748
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ABCMR Record of Proceedings (cont) AR20100023748
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