IN THE CASE OF:	  

		BOARD DATE:	    31 July 2012

		DOCKET NUMBER:  AR20110025059 


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 coverage within 1 year of their divorce.

2.  The applicant states that in 1993 he completed forms he thought would assure his former spouse's SBP benefits and neither he nor his former spouse, F_____s, knew of the requirement to submit a change in the SBP election within 1 year of their divorce.  He was told at the time that the only way this would ever change would be if he initiated the change.  They were both under the impression that the language of their divorce decree would be sufficient to secure her SBP benefits and her attorney assured them both that this would be the case.  The attorney was evidently not versed in military affairs, and neither of them was aware of any further action that needed to be taken to ensure that his former spouse's survivor benefits were in place.

3.  The applicant provides a:

* Self-authored statement
* Statement from his former spouse
* Marital Dissolution Agreement
* Final Divorce Decree


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 June 1951 and he is a retired Army National Guard (ARNG) master sergeant (MSG)/E-8.  He married F_____s on 
20 November 1970.

2.  On 19 October 1991, upon receipt of his 20-Year Letter and in anticipation of his upcoming retirement, he completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to F_____s and had a dependent child.
He elected spouse-only Reserve Component SBP (RCSBP) coverage based on the full amount with immediate coverage.  Both the applicant and his wife authenticated this document with their signatures.

3.  On 12 January 2000, he was honorably discharged from the ARNG and transferred to the Retired Reserve on the following day.  

4.  On 9 October 2009, he and F_____s divorced.  The divorce decree he submits with his application stipulates the wife would be designated an SBP beneficiary on his retirement pension and the husband waived any right to privacy to the wife in order to obtain information pertaining to the husband's retirement account or accounts.

5.  There is no indication the applicant notified DFAS to change his SBP election to former spouse coverage or that the former spouse made a deemed election within 1 year of their divorce.

6.  The applicant married R______e at a later date.  A review of his Military Master Pay File revealed he is enrolled in the SBP and the current beneficiary is R______e.

7.  On 3 June 2011, he was honorably retired and placed on the Retired List in the rank/grade of MSG/E-8 on 4 June 2011.

8.  On 2 October 2011, the former spouse became aware that she was ineligible for the applicant's SBP annuity because the applicant's records showed he neither made a request to change his SBP election to former spouse nor was a deemed election made by her within 1 year of their divorce.

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; (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.  

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 SBP for former military spouses of 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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

13.  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 one 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.  On 19 October 1991 he completed a DD Form 1883 and elected spouse-only RCSBP coverage.  Years later, he and the former spouse divorced.

2.  The applicant did not make a former spouse election and the former spouse did not make a deemed election within 1 year of their divorce.

3.  The applicant has remarried.  Since SBP elections are made by category, not by name, once the applicant and the former spouse were divorced, she was no longer his spouse and no longer the eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse/widow if they have been married for at least 1 year, not his former spouse.

4.  Notwithstanding the applicant's sincerity, the ABCMR may not correct the applicant's records to effect a change of his SBP election to former spouse coverage, for so doing would deprive his current wife of a property interest without due process of law. 

5.  The ABCMR would accept a request for reconsideration if accompanied by a signed, notarized declaration from this current wife relinquishing any interest in the SBP annuity or a judgment from a court of competent jurisdiction decreeing the former spouse has a superior right to the SBP annuity.

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)                                         AR20110025059



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ABCMR Record of Proceedings (cont)                                         AR20110025059



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