BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110000948 


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 he failed to update his coverage within 1 year of his divorce because he was unaware of this requirement.  He thought his former spouse was still qualified to receive this benefit because her name was still on the required paperwork and he continued to have SBP premiums deducted from his retired pay.  He and his former spouse were together for 24 years, including the two combat tours he served in Vietnam.  His intent was and remains to have his former spouse as the beneficiary of his annuity.  She stood by him through good and bad and she deserves the annuity should anything happen to him.  She greatly contributed to his military success and even though he remarried in 2003, his former spouse should rightfully be the beneficiary of his SBP annuity.

3.  The applicant provides his divorce decree and marriage license.

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 married his spouse Mattie on 9 December 1961.  

3.  The applicant is a retired Regular Army master sergeant (MSG)/E-8 who initially entered active duty in August 1962.  He served through a variety of stateside and overseas assignments, including France, Vietnam (two tours), Korea, and Germany, and he held military occupational specialty (MOS) 51Z (General Engineering Supervisor) and MOS 76Z (Senior Supply Sergeant).   

4.  On 6 January 1986, in anticipation of his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married to Mattie and had dependent children.  He elected spouse and dependent children SBP coverage based on a reduced amount.  

5.  He was honorably retired on 31 January 1986 and was placed on the retired list in his retired rank/grade of MSG/E-8 on 1 February 1986.  He was credited with completing over 23 years of faithful honorable active service.

6.  On 31 August 1999, he and Mattie were divorced.  The divorce decree he submitted with this application did not address the SBP.

7.  There is no indication that the applicant notified DFAS within 1 year of their divorce to change his SBP election to former spouse coverage.  

8.  The applicant married Barbara on 14 October 2003.  

9.  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.

10.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members.

11.  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 evidence of record shows at the time of retirement in 1986, the applicant elected to participate in the SBP for spouse and children coverage at a reduced rate.  Years later, he and his spouse were divorced.  Their divorce decree did not obligate him to change SBP coverage from spouse coverage to former spouse coverage.  

2.  The applicant did not make a former spouse election within 1 year of the divorce.  A change in SBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant (absent a provision in the divorce decree), which the evidence of record shows he did not make. 

3.  Furthermore, the applicant remarried in October 2003.  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 have been married for at least 1 year. 

4.  Notwithstanding the applicant's sincerity, the ABCMR may not correct the applicant's records to effect a change of his SBP election to former spouse coverage, 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 that 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)                                         AR20110000948



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000948



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1