IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110016638 


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 that his DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) be corrected by adding his current spouse and deleting his former spouse and children.

2.  The applicant states, in effect, that he was originally notified of the requirement to submit his SBP election in April 1991 and he did not remember to change or update the information within 90 days after the changes occurred.  He goes on to state that his children are no longer of age and he has since remarried. 

3.  The applicant provides:

* A four-page letter explaining his application
* A copy of his 20-year letter dated 8 April 1991
* A copy of his DD Form 1883 dated 18 May 1991
* Copies of his assignment, mobilization, and transfer orders
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of a DA Form 1577 (Authorization for Issuance of Awards) 
* A copy of his Personnel Qualification Record – Part II
* A copy of orders transferring him to the AUS Retired List
* A copy of his Chronological Statement of Retirement Points
* A copy of his Application for Retired Pay Benefits and his Retirement Certificate
* A copy of a DD Form 2656 (Data for Payment of Retired Personnel) dated 20 July 2010
* A copy of a letter from the Defense Finance and Accounting Service (DFAS) dated 6 October 1997 indicating that a copy of the court order directing a division of his retired pay had been received at DFAS
* A copy of a court order directing that his ex-wife be designated the beneficiary of his SBP annuity as a former spouse
* A copy of his marriage license to his current spouse dated 21 October 1996

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 was serving as a U.S. Army Reserve (USAR) major in Southwest Asia in support of Operation Desert Shield/Storm when his 20-year letter was issued on 8 April 1991. 

3.  On 18 May 1991 the applicant submitted his DD Form 1883 electing full spouse and children coverage under option C for immediate coverage.  The DD Form 1883 contained the statement notifying the applicant that the decision he made with respect to participation in the SBP was a permanent irrevocable decision.  The applicant also indicated that it was the only election he had submitted under the SBP.

4.  On 24 August 1991 he was transferred to the USAR Control Group (Retired) based on his own request.  

5.  On 6 June 1996 a court order issued in the District Court of Johnson County, Kansas ordered the applicant to pay his former spouse one-half of his disposable retired pay and to designate her as the beneficiary of his SBP annuity as a former spouse.  DFAS acknowledged receipt of the court order on 6 October 1997 and the applicant’s account was changed accordingly.
6.  He was placed on the Army of the United States (AUS) Retired List in the rank of major effective 16 September 2011.  He also submitted a DD Form 2656 designating his former spouse as the beneficiary of his SBP and his current spouse signed the DD Form 2656 agreeing to the choice made by the applicant.

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.  Election of beneficiaries is made by category only, not by name.

8.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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 they die before age 60 but delay payment of it until the date of the member’s 60th birthday, (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  

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 former spouse coverage for retired members (Reservists, too).

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 member was participating in the SBP 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, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  
13.  Title 10, U. S. Code, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless, one of the following requirements, whichever are applicable in a particular case are satisfied:

	(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person 

		(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

		(ii) certifies to the Secretary concerned that the court order is valid and in effect; or
 
   (B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

		(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

		(ii) certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DD Form 1883 should be updated to delete his former spouse and children and to add his current spouse has been noted and found to lack merit.

2.  The applicant made an irrevocable RCSBP election for full spouse and children coverage in 1991 and after receiving a divorce from his spouse DFAS was properly notified that his former spouse was the beneficiary of his SBP annuity.

3.  Accordingly, the applicant’s election of former spouse cannot be changed unless a valid court is obtained which invalidates the original court order.

4.  Therefore, in the absence of evidence to show otherwise, the applicant’s RCSBP/SBP election appears to be correct and in accordance with the applicable laws and regulations in effect and the applicant has failed to show through the evidence submitted with his application and the evidence of record any legal basis to make the changes he has requested.

 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)                                         AR20110016638





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ABCMR Record of Proceedings (cont)                                         AR20110016638



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