IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120001419 


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:

* his former spouse Irene was the beneficiary of his SBP with the Defense Finance and Accounting Service (DFAS)
* DFAS continued to collect SBP premiums from his pay records before and after his divorce from Irene
* he notified DFAS of his 15 April 2009 divorce in May 2009 and informed DFAS officials that he would be responsible for making distribution to her on a monthly basis
* he was never told he needed to change his SBP election to former spouse and his former spouse depended on him to handle the Army paperwork
* on 8 November 2010, he informed DFAS of his remarriage to Margaret and that his SBP would remain the same
* on 15 January 2011, DFAS officials informed him that he had no beneficiary because he failed to notify them of his divorce within 1 year 
* DFAS reimbursed him the money he had previously paid in good faith for the coverage he thought he had
* he is now faced with a civil liability for being non-compliant with a court- ordered divorce decree
* he is in a legal bind and requires correction of this situation
* he will reimburse the Army with all monies due if the decision is overturned
* his current spouse agreed to waive all SBP benefits to allow the former spouse to be reinstated
* if he dies, the Army would pay the annuity to his spouse or former spouse, one way or the other

3.  The applicant provides:

* property settlement agreement
* divorce decree
* two letters from DFAS
* letter to DFAS
* current spouse's affidavit

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 12 October 1943.

2.  Having prior enlisted 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 19 August 1966.

3.  He married Irene on 27 August 1967.

4.  He served in the Army National Guard and U.S. Army Reserve in a variety of staff and leadership assignments and he attained the rank of lieutenant colonel.

5.  On 12 May 1987, the U.S. Army Reserve Personnel Center issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of qualifying Reserve service and would be eligible for retired pay upon application at age 60.

6.  On 11 August 1987, Headquarters, First U.S. Army, published orders reassigning the applicant to the Retired Reserve effective 13 September 1987.

7.  On 3 September 1987, he submitted a DD Form 1883 (SBP Election Certificate) wherein he indicated he was married to Irene 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 Irene concurred.

8.  On 12 March 2003, 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 Irene and elected "spouse" SBP coverage based on a reduced amount.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  His spouse did not authenticate this form as required by law when a member is married and elects children-only coverage, does not elect full spouse coverage, or declines coverage.

9.  On 21 July 2003, the U.S. Army Reserve Personnel Command published orders placing him on the Retired List in the rank of lieutenant colonel effective 12 October 2003, his 60th birthday.

10.  On 20 March 2009, he and Irene entered into a property settlement agreement.  Their agreement stipulated that:

* the applicant's wife (Irene) shall be entitled to 50 percent of the net monthly proceeds/benefit/payment from his military pension
* the applicant's wife (Irene) shall be and remains the irrevocable beneficiary of his pension plan and that he would provide his wife (Irene) with of proof of the beneficiary designation on said pension within 15 days of his wife's (Irene's) request of the same

11.  On 15 April 2009, he and Irene were divorced and their property settlement agreement was incorporated into their divorce decree.

12.  There is no indication he notified DFAS of his divorce within 1 year or that he submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.  Additionally, there is no indication his former spouse deemed the SBP election within 1 year of their divorce.

13.  On 23 October 2010, the applicant married Margaret and he notified DFAS of his remarriage on 8 November 2010.  He requested a new Designation of Beneficiary Form and raised two questions regarding the SBP.

14.  On 15 January 2011, DFAS officials notified him that an adjustment was made to the SBP portion of his retired pay based on his remarriage.  The adjustment was from no beneficiary to "spouse" based on the full amount effective 23 October 2011.  He was also informed that his new spouse would become an eligible SBP beneficiary on 23 October 2011 (the first anniversary).

15.  On 18 January 2011, DFAS officials informed him that an adjustment was made to the SBP portion of his retired pay based on his divorce and that his former spouse was not an eligible SBP beneficiary because the election for former spouse must be made within 1 year of their divorce.  He was refunded the premiums paid from 15 April 2009, the date of divorce.

16.  He submitted a signed and notarized affidavit by his current spouse Margaret, dated 11 January 2012, wherein she states that if this application is approved, she waives any claim, benefits, or rights to the pension as long as the former spouse Irene is alive.  She later submitted a second notarized document, dated 31 May 2012, in which she unconditionally waived her entitlement to the SBP.

17.  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.

18.  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).

19.  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.

20.  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 evidence of record shows he married Irene on 27 August 1967.  Upon receiving his 20-year letter, he elected "spouse and children" RCSBP coverage.  His RCSBP coverage automatically converted to SBP coverage upon his retirement on 3 September 1987.

2.  He and Irene were divorced on 15 April 2009.  His divorce decree stipulated that his former spouse would be entitled to half of his retired pay and would remain the irrevocable beneficiary of his pension plan and that he would provide her proof of the beneficiary designation on said pension within 15 days of her request of the same.

3.  SBP and/or RCSBP 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, if permitted, as stipulated in their divorce decree.  He did not do so within 1 year of their divorce.  Additionally, his former spouse may not have been aware of the option to deem the election.

4.  The applicant remarried on 23 October 2010 and his current spouse obtained a vested interest in the SBP on their first anniversary.  However, his current spouse relinquishes any entitlements to her husband's SBP in favor of the former spouse.  Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse."  As such, and only as a matter of equity, his record should be corrected to show he did so within 1 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 1 year of his divorce on 15 April 2009 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)                                         AR20120001419



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ABCMR Record of Proceedings (cont)                                         AR20120001419



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