IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110001462 


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, in effect, correction of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) for former spouse coverage.

2.  The applicant states he and his former spouse divorced in 2003.  The divorce directed him to name her as his SBP beneficiary with the costs of the insurance to be paid by her and when he retired he accordingly made the election per the court order.  He recently spoke to her and found out she never wanted the SBP insurance and believed she did not have the option to decline.  The intent with the language in their settlement agreement was to commit him to naming her as the SBP beneficiary so she would have a choice whether or not to accept it; the intent was not to bind her to taking it.  He further stated that he wants to terminate the SBP completely and he does not want to change it to spouse coverage.

3.  The applicant provides:

* A settlement agreement
* A divorce decree
* Two statements from his former spouse
* A page titled SBP Questionnaire
* DD Form 2656 (Data for Payment of Retired Personnel)




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a U.S. Army Reserve officer and executed an oath of office on 28 January 1993.  He retired on 31 May 2008.  Defense Finance and Accounting Service (DFAS) records show that at that time he enrolled in the SBP for former spouse coverage beginning on 1 June 2008.

2.  He and his former spouse were married on 1 August 1987.  On 31 January 2003, the applicant and his former spouse entered into a settlement agreement wherein it states, in pertinent part, that "When [the applicant] retires, he shall name wife as his SBP beneficiary and the cost of the SBP insurance will be paid by the wife."

3.  On 16 April 2003, he and his former spouse were divorced.  The final judgment of dissolution of marriage approved and incorporated the marital settlement agreement that awarded the former spouse the SBP.

4.  The applicant provides a DD Form 2656, dated 16 January 2008, wherein he elected SBP former spouse coverage.  He indicated his election was being made pursuant to a written agreement entered into voluntarily as part of a proceeding of divorce and incorporated in a court order.

5.  The applicant also provides a statement from his former spouse, dated 6 January 2011, wherein she states she is the beneficiary of her former spouse's SBP and she is requesting the SBP coverage be terminated.  She also states if the request is approved she understands she may not opt for the SBP in the future and there will be no reimbursement for premiums paid to date.

6.  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.

7.  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.

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 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.

9.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows at the time of the applicant's retirement, he completed an SBP election form wherein he elected SBP former spouse coverage based on a settlement agreement that was incorporated into his divorce decree.  As his election was mandated by a court order, there was no requirement for his former spouse to be notified of his election, and there was no option for her to accept or decline the election.  

2.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP by submitting the appropriate request to DFAS - Retired Pay.  No premiums will be refunded to those who opt to disenroll from the program.  The applicant's 1-year period to withdraw from the SBP commenced on 1 June 2010 and ended on 31 May 2011.

3.  The applicant's request to the Army Board for Correction of Military Records (ABCMR) to withdraw from the SBP for former spouse was dated 3 January 2011 and received by the ABCMR on 20 January 2011.  His request includes his former spouse's statement agreeing to the termination of the SBP.  Therefore, as a matter of equity it would be appropriate to correct his records to show he requested to withdraw from the SBP for former spouse coverage on 1 June 2010 with entitlement to reimbursement of the SBP premiums paid from that date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  showing the applicant withdrew from the SBP for former spouse coverage on 1 June 2010.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the correction of his records to show he declined the SBP former spouse coverage at the time of his retirement.



      _________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)                                         AR20110001462





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ABCMR Record of Proceedings (cont)                                         AR20110001462



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