IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20100029917 


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 from "spouse" to "former spouse" coverage within 1 year of his divorce.

2.  The applicant states neither he nor his former spouse was properly notified of the time restrictions.  He contends that at the time of the application for coverage for Dorothy, his former spouse, the recipient was designated as Celeste, his current spouse.

3.  The applicant provides a copy of his DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) witnessed on 29 December 2006.

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 applicant's 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 applicant's 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/E-8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably retired on 31 August 1970.

3.  On 16 January 1973, he completed a USAFSA Form 2621 (SBP Election Certificate by Existing Retiree).  He indicated he was married to Dorothy and had dependent children.  He elected spouse-only SBP coverage based on the full amount.

4.  His record contains a Board application submitted by Dorothy requesting reinstatement of SBP, dated 22 June 1995.  She contends the divorce papers state the applicant would pay for the coverage and she truly thought he would.  However, he stopped paying the premiums 1 month after their divorce.  She states she was unaware he was not paying for SBP until she received her last check stating that upon his death there would be no more benefits.  Her application was returned without action and she was informed that the service member must personally submit an application for correction of his military records since there was no evidence he is incapable of making the application or that he is deceased.

5.  The former spouse's application contains a divorce decree which shows the applicant's former wife was the beneficiary of his SBP at the time of their divorce on 4 September 1984.  Further, the applicant agreed to designate his wife as the sole beneficiary of his SBP upon termination of their marriage.  In addition, he agreed to execute and forward to the U.S. Army all forms required by the U.S. Army to implement said coverage.

6.  Although the former spouse's application was returned without action, this agency obtained an advisory opinion from Army Retirement Services Office, Alexandria, VA, dated 7 December 1995.  The opinion summarily states the applicant initially participated in SBP for Dorothy, but upon their divorce he made no voluntary election to continue her coverage in accordance with the terms of their divorce.  They divorced on 4 September 1984 and the court did not have the authority to order former spouse coverage until 14 November 1986.  The Defense Finance and Accounting Service (DFAS) suspended his spouse coverage upon notification of his divorce.

7.  According to the advisory opinion by, the applicant's DFAS records contained no correspondence from Dorothy regarding an election change and she did not have the right to deem an election because the State court lacked authority to order former-spouse coverage.  The applicant failed to notify the finance office of his remarriage; however, according the Defense Enrollment Eligibility Reporting System (DEERS) database, he remarried on 23 September 1984.  Finally, the applicant owed premiums from the first of the month following the first anniversary of the remarriage, 1 October 1985, to the present [7 December 1995] and the opinion recommended that DFAS request marriage documentation and institute debt collection.

8.  His pay record contains:

	a.  a DD Form 2656 (Data for Payment of Retired Pay) which shows he made a "former spouse" election for Dorothy on 14 September 2006.  This form also indicates he married Celeste on 23 November 1984;

	b.  a DD Form 2656-9 (SBP and Reserve Component (RC)/SBP Open Enrollment Election), dated 5 May 2010, that shows he elected former-spouse coverage for Dorothy and his date of marriage to Celeste is shown as 16 October 1984; and

	c.  a DD Form 2656-10 (SBP/RCSBP Request for Deemed Election) which identifies Dorothy as his former spouse.  This document is undated and unsigned.

9.  Per telephone conversation with the DFAS Retired Pay Office, the applicant paid a catch-up premium for Celeste in the amount of $9408.06 on 30 November 1995 and she is designated as the recipient for his SBP.

10.  Public Law 97-252, the Uniformed Services Former Spouse Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's 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.

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 1 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 preponderance of the evidence of record shows the applicant enrolled in SBP for spouse coverage when the program first became available over 2 years after his 1970 retirement from active duty.  In September 1984, he and his spouse divorced.  Their divorce decree obligated him to change SBP coverage from spouse coverage to former spouse coverage.  However, at the time courts could not order former spouse coverage, and it appears he did not comply with this stipulation.  He soon thereafter remarried.

2.  The applicant did not make a former-spouse voluntary change to coverage within 1 year of the divorce and his former spouse could not request a deemed election within 1 year of their divorce because no such election was then authorized.  The evidence shows he did elect to make a catch-up premium to establish SBP for his current spouse.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant because the State court did not have the authority to order former-spouse coverage until 14 November 1986.

3.  The applicant remarried in October 1984.  Since SBP elections are made by category, not by name, once the applicant and his former spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least 1 year.

4.  The ABCMR may not correct the applicant's records to effectively change his election to former spouse, for so doing would deprive his current spouse of a property interest without due process of law.  The ABCMR would accept a reconsideration request if accompanied by a signed, notarized declaration from this current spouse renouncing or relinquishing any interest in the SBP annuity.

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)                                         AR20100029917



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ABCMR Record of Proceedings (cont)                                         AR20100029917



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