IN THE CASE OF:
BOARD DATE: 12 July 2011
DOCKET NUMBER: AR20110002268
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 elected to change his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.
2. The applicant states his representation during the divorce proceedings did not make him aware that the record needed to be changed within one year. His full intention was to designate his former spouse as the beneficiary of his SBP.
3. The applicant provides:
* divorce decree
* marriage record
* notarized statement from his spouse
CONSIDERATION OF EVIDENCE:
1. The applicant is a retired Regular Army major. He married his spouse, Eleanor, on 22 August 1959. He entered active duty on 23 November 1965 and served in a variety of stateside and overseas assignments. He retired on 30 September 1978 and he was placed on the retired list on 1 October 1978.
2. In connection with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated he was married to Eleanor. He elected spouse only SBP coverage based on a reduced amount ($300.00). His spouse, Eleanor, concurred with his election.
3. On 9 March 2001, he and his spouse, Eleanor, were divorced. Their divorce decree stipulated that he would participate in the former spouse SBP and would name his spouse, Eleanor, as the beneficiary of his SBP.
4. There is no indication that the applicant changed his SBP coverage from "spouse" to "former spouse" coverage. Additionally, there is no indication his former spouse, Eleanor, deemed the election.
5. On 30 March 2010, he married Amparo.
6. He provides a signed and notarized statement, dated 15 June 2011, by his current spouse, Amparo, wherein she states:
I, [her name], being of sound mind and body, concur with my husband's request and wishes that his Survivor Benefit Plan payments be made to his former spouse, [name of former spouse], upon his demise as stated in their divorce decree. I understood this when we were married and agree not to contest it in the future.
7. 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.
8. 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. Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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.
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 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.
11. Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant elected SBP spouse coverage. He and his spouse, Eleanor, were divorced on 7 March 2001 and their divorce decree stipulated Eleanor would be, in effect, the designated beneficiary of his SBP. There is no indication that he submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of the divorce.
2. Furthermore, the applicant remarried. Since SBP elections are made by category, not by name, once the applicant and his spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. Nevertheless, he was required to make a former spouse election as stipulated in the divorce decree. Additionally, his current spouse relinquishes any entitlements to her husband's SBP in favor of the former spouse.
3. Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" and, as such and only as a matter of equity, his record should be corrected to show he did so within one year of his divorce and that his request was received and processed by DFAS 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 showing he elected SBP coverage for former spouse within one year of his divorce on 7 March 2001 and that his request was received by DFAS and processed by the appropriate office 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) AR20110002268
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ABCMR Record of Proceedings (cont) AR20110002268
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