BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110005974 


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" within 1 year of his divorce.

2.  The applicant states he had no knowledge of the 1-year requirement from the date of the divorce.  He was a member of the Army National Guard (ARNG).  Officials at the Defense Finance and Accounting Service denied his request because it was not submitted within 1 year.

3.  The applicant provides his divorce decree.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 16 December 1944 and married his spouse C____ on 26 October 1968.

2.  Having prior enlisted, warrant officer, and commissioned officer service, his records show he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant and executed an oath of office on 1 March 1967.

3.  He served in the ARNG in a variety of stateside and overseas assignments and he was promoted to major general.

4.  On 24 April 1989, the National Guard Bureau (NGB) issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of qualifying Reserve service and would be eligible for retired pay upon application at age 60.

5.  On 7 July 1989, he submitted a DD Form 1883 (SBP Election Certificate) wherein he indicated he was married to C____ and they had dependent children. 
He elected to provide an immediate Reserve Component SBP (RCSBP) annuity, option C, for "spouse and children" coverage based on the full amount.  His spouse concurred.

6.  On 26 October 2004, NGB published orders reassigning the applicant to the Retired Reserve.

7.  On 16 August 2004, he submitted an application for retired pay at age 60.  In connection with this application, he also submitted a DD Form 2656 (Data for Payment of Retired Pay) wherein he indicated he was married to C____ and elected "spouse" SBP coverage based on the full amount.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.

8.  On 4 January 2010, he and his spouse C____ divorced.  Their divorce decree states his spouse was awarded one-half of the interest in his retired pay and to the military retirement annuity.

9.  The applicant indicated he has not remarried.  His March 2011 Retiree Account Statement shows he currently has "spouse" SBP coverage.  He pays the "spouse only" SBP cost as well as the RCSBP cost.

10.  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.

11.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (to include Reserve members).

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if he or she dies before age 60 but delay payment of it until the date of the member's 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon his or her death if before age 60.  At the time, a member must have made the election within 90 days of receiving the Notification of Eligibility for Retired Pay at Age 60 or else wait until he or she applied for retired pay and elected to participate in the standard SBP.

13.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of USFSPA relating to 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 applicant contends his records should be corrected to show he changed his SBP coverage from "spouse" to "former spouse" coverage pursuant to his divorce decree.

2.  The evidence of record shows he was married on 26 October 1968 and was divorced in January 2010.  His divorce decree stipulated that his former spouse would be entitled to half of his retired pay, but it did not stipulate that the former spouse be named as a sole beneficiary of his SBP annuity.

3.  He did not submit a change in SBP election from "spouse" to "former spouse" coverage within 1 year of his divorce.  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.  A change in SBP beneficiary would have been a strictly voluntary action on the part of the applicant which is a change the evidence of record shows he did not make.

4.  The applicant did not remarry and he continued to pay SBP premiums based on "spouse" coverage.  This suggests that it was his intent to continue to provide SBP coverage for his former spouse.  Therefore, it would be equitable to correct the applicant's records to show he changed his SBP election to "former spouse" coverage within 1 year of the marriage's dissolution.


BOARD VOTE:

____x_  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 changed his SBP coverage from "spouse" to "former spouse" coverage on 5 January 2010, the first day he was eligible under the law to make this election, and that his request was received 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)                                         AR20110005974



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ABCMR Record of Proceedings (cont)                                         AR20110005974



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