IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110019397 


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, a retired former service member, requests that his military records be corrected to show he elected former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) for C____ K____, his former spouse, who will simply be referred to as his former spouse throughout the remainder of these proceedings.

2.  The applicant states, in effect, he initially elected his former spouse as the beneficiary for his RCSBP in 1991 when he received his 20-year letter and she was his current spouse.  He states he submitted a former spouse election through the Illinois Army National Guard (ILARNG) in May 2002 as per instruction in their divorce decree.  He again submitted it through his lawyer in August or September of the same year and provided his former spouse with the DD Form 2293 (Application for Former Spouse Payments from Retired Pay) for her to submit to the Defense Finance and Accounting Service (DFAS).  When he submitted his retirement request to the U.S. Army Human Resources Command in St. Louis, Missouri, in September 2007 he was assured that the divorce decree and election were present and would be forwarded to DFAS; however, such did not occur and he is now in violation of the court order.  He was also advised that it did not matter that he put his current wife on his DD Form 2656 (Data for Payment of Retired Personnel) because the divorce decree would override his election.  Accordingly, he desires to have his SBP election changed from his current spouse to his former spouse.

3.  The applicant provides copies of his divorce decree; his election for former spouse coverage, dated 3 May 2002; an unsigned DD Form 2293; a letter from his lawyer; two email messages regarding SBP coverage; and a notarized statement from his current spouse waiving all claims to the SBP annuity in favor of his former spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the rank of major in the ILARNG when he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 4 March 1991.  He was promoted to the rank of lieutenant colonel on 21 February 1998.

2.  The applicant obtained a divorce from his spouse on 8 March 2002 and the divorce decree essentially shows he was ordered to immediately obtain, fully complete, sign, and return all documents, papers, and forms necessary to provide former-spouse SBP benefits for his former spouse to DFAS and to simultaneously provide his former spouse with copies of those documents, papers, and forms.

3.  The applicant married his current spouse on 7 June 2003 and the applicant was transferred to the Retired Reserve on 4 June 2004.

4.  On 15 August 2007, the applicant submitted a DD Form 2656 in which he designated his current spouse as the beneficiary of his SBP annuity.

5.  On 24 May 2009, he was transferred to the Retired List at age 60.

6.  There is no evidence in his official records that shows the applicant applied for former-spouse SBP coverage for his former spouse within 1 year of their divorce.  There also is no evidence that his former spouse made a deemed election within 1 year of their divorce.

7.  The applicant essentially states he erroneously listed his current wife as beneficiary to receive an annuity under the RCSBP when he filled out a DD Form 2656-6 (SBP Election Change Certificate) in 2006.  However, he stated he had a court order as part of his divorce that prohibited anyone except his former spouse to be named and receive benefits under the RCSBP.  Additionally, he stated that even though their divorce contains court orders for this, it is also what he desires and he would appreciate the Army Board for Correction of Military Records making the corrections as stated in his application as he has a court hearing on 24 May 2012.

8.  The applicant provides a notarized letter, dated 6 April 2012, which was completed by the applicant's current spouse.  This document essentially states she voluntarily waives all claims to her husband's SBP annuity in favor of his former spouse.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had 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 they die before age 60 but delay payment of it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Spousal notification and concurrence are required only if the member elects to participate in the RCSBP for less than full spouse coverage.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  Before spousal notification and concurrence were required, failure to elect an option resulted in the default election of option A.

10.  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.

11.  Public Law 98-94, dated 24 September 1983, established former-spouse coverage for retired members.

12.  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 SBP or was still on active duty and had not yet made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  Based on the language in the divorce decree, it is clear the applicant was ordered to enroll in SBP for former-spouse coverage.  Instead, the applicant failed to apply for former-spouse SBP coverage within 1 year of their divorce.  There is also no evidence that the former spouse made a deemed election within 1 year of their divorce.  Instead, for whatever reason, the applicant submitted a DD Form 2656-6 on 15 August 2007 electing SBP spouse-only coverage for his current spouse.

2.  Although the applicant failed to make a written request to convert his SBP election to his former spouse, the evidence shows an injustice occurred in this case and that it would now be appropriate to correct the injustice done to the applicant's former spouse due to the applicant's failure to comply with the terms contained in their 2002 divorce settlement.  His current spouse has agreed to this correction.

3.  In view of the foregoing and on the basis of justice, it would be proper to correct the applicant's military records as shown below.

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 made a timely RCSBP election for former-spouse coverage which DFAS received, processed, and implemented 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)                                         AR20110019397



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ABCMR Record of Proceedings (cont)                                         AR20110019397



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