IN THE CASE OF:
BOARD DATE: 28 August 2012
DOCKET NUMBER: AR20120003008
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 a DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage) be processed even though the form is being submitted outside the 1-year window for electing SBP coverage for his former spouse.
2. He states he was divorced nearly 3 years after his discharge from active duty. Shortly after the divorce was final, he submitted a DD Form 2656-1 with the nearest military installation. It was brought to his attention that the form was not processed because he did not correctly answer three items on the form.
3. He provides a DD Form 2656-1, a Decree of Dissolution of Marriage, and Stipulated Final Orders.
CONSIDERATION OF EVIDENCE:
1. On 31 December 2006, the applicant retired from the Regular Army in the rank/grade of lieutenant colonel/O-5 after completing 20 years and 12 days of active military service.
2. During his retirement processing, he completed a DD Form 2656 (Data for Payment of Retired Personnel). The form shows he was married to Nancy, and he elected full SBP coverage for spouse only.
3. He provides a Decree of Dissolution of Marriage filed on 15 December 2009 and Stipulated Final Orders filed on 18 February 2010.
4. The Stipulated Final Orders address the SBP in paragraph 9d, which states "The cost of the [SBP] shall be deducted prior to the division of the military retirement." Signature pages attached to the Stipulated Final Orders show he and Nancy agreed to the terms.
5. He provides a DD Form 2656-1. The form shows that, due to divorce, he is requesting a change of his SBP coverage to former spouse. He indicates he is not currently married, that the election is not being made pursuant to a court order or pursuant to a written agreement part of or incident to a proceeding of divorce. The form shows Nancy is the former spouse to be covered, that they divorced on 14 December 2009, and that Nancy has not remarried. The form bears his and Nancy's witnessed signatures.
6. On 13 August 2012, during the processing of this case, the Defense Finance and Accounting Service confirmed the applicant currently has no eligible SBP beneficiaries.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.
9. 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 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 supports the applicant's request to process the DD Form 2656-1 he provides.
2. The Stipulated Final Orders defining the terms of his divorce from Nancy do not specifically order him to provide SBP coverage for her. However, the document does state "the cost of the [SBP] shall be deducted prior to the division of the military retirement." This indicates a clear understanding that he would provide this coverage for his former spouse.
3. It is unclear why he submitted a DD Form 2656-1 to the nearest military installation. As a retiree, any issues regarding his SBP election should have been addressed directly to DFAS. Notwithstanding his error, it appears he made a reasonable effort to change his SBP election and failed.
4. In view of the foregoing, there would be no harm in correcting his record to show he submitted a timely request to change his SBP election to former spouse coverage and to process the DD Form 2656-1 he provides.
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 submitted a timely request to change his SBP election to former spouse coverage and it was accepted and processed 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) AR20120003008
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ABCMR Record of Proceedings (cont) AR20120003008
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