IN THE CASE OF:
BOARD DATE: 2 October 2012
DOCKET NUMBER: AR20120005127
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, in effect, his Survivor Benefit Plan (SBP) election be changed from Spouse to Former Spouse.
2. The applicant states after he was divorced he was told he did not have to change his election. He just learned his former spouse would not receive SBP because he has remarried and he did not change his election to former spouse upon his divorce.
3. The applicant provides a supporting notarized letter from his current spouse, a letter from his former spouse, and a letter from his daughter in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 31 March 1975, the applicant was honorably retired in the rank of first sergeant/E-8 after completing a total of 20 years and 1 day of active military service. A DA Form 4240 (Data for Payment of Retired Army Personnel) completed during the applicants retirement processing shows he elected SBP Spouse and Children coverage. Sophie was his spouse at the time.
3. On 17 September 1992, the applicant and his former spouse completed a settlement agreement in the Superior Court of Muscogee County and State of Georgia which stipulated, in pertinent part, that the applicant agreed to name his former spouse as the beneficiary of the SBP insurance he carried through the Armed Forces of the United States and that his liability to do so would continue until the death of the former spouse or until she remarried.
4. On 26 October 1992, the applicant and his former spouse were divorced under the terms of the settlement agreement.
5. The Defense Finance and Accounting Service confirmed the applicants pay record shows he currently has a Spouse Only SBP election at a reduced base amount.
6. The applicants current spouse completed a notarized statement, dated
22 February 2012, in which she confirms that she willingly gives up her rights to survivor benefits from her husbands military retirement pay. She further indicates that she understands she will not receive any money from his retirement after his death and that she completed this statement without duress.
7. The applicants former spouse also provides a notarized statement indicating it was always her understanding that she would receive the applicants survivor benefits from his military retirement upon his death. The daughter of the applicant and former spouse also provides a notarized statement in which she confirms it has always been her understanding that her mother would receive the applicants survivor benefits from his military retirement upon his death.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct his record to show a former spouse SBP election has been carefully considered and found to have merit.
2. The evidence of record confirms the applicant and his former spouse were divorced on 26 October 1992. The divorce decree incorporated the settlement agreement entered into by the applicant and his former spouse on 17 September 1992, which included the agreement of the applicant to continue SBP coverage for his former spouse until her death or remarriage.
3. In view of the foregoing and given the applicants current spouse provided a statement relinquishing any right to SBP benefits it would be appropriate and equitable to correct the record to show the former spouse option for SBP was elected by the applicant at the time of their divorce in 1992.
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 elected former spouse SBP coverage at the reduced rate under the terms of his 1992 settlement agreement and divorce decree 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) AR20120005127
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120005127
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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