IN THE CASE OF:
BOARD DATE: 9 October 2012
DOCKET NUMBER: AR20120005231
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, correction of his military records to show the beneficiary of his Survivor Benefit Plan (SBP) as former spouse and children.
2. The applicant states, in effect, that if his former spouse has been dropped as a beneficiary of his SBP, he wants her to be reinstated.
3. The applicant provides copies of:
* Divorce Decree, dated 19 August 2010
* Support and Property Agreement, dated 12 July 2010
* Child Support Addendum
* Parenting Plan
CONSIDERATION OF EVIDENCE:
1. On 18 October 1978, the applicant, with prior active service, enlisted in the Regular Army. He served through a series of reenlistments and he attained the rank/grade of sergeant first class (SFC)/E-7.
2. On 19 September 1995, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected to participate in the SBP for spouse and children coverage at a reduced amount. His spouse at the time concurred with this election.
3. On 31 October 1995, the applicant retired by reason of length of service. He completed 20 years and 25 days of creditable active service.
4. On 19 August 2010, the applicant's divorce was finalized. The divorce decree incorporates a separation agreement wherein the applicant is required to name his former spouse as the beneficiary of his SBP. There is no evidence the applicant remarried.
5. The Defense Finance and Accounting Service (DFAS) record shows there has been no change in the applicant's SBP beneficiary status since his retirement in 1995.
6. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.
7. 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.
8. Title 10, U. S. Code, section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows the applicant had properly established his then spouse and children as his SBP beneficiaries at the time of his retirement and that this election still remains in force.
2. Although the applicant failed to change his SBP election to former spouse and his former spouse failed to request a deemed election, it appears he never remarried and it it would be appropriate as a matter of equity to show the applicant requested to change his SBP beneficiary from spouse and children to former spouse and children within 1 year of his final divorce.
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 the applicant requested to change his SBP beneficiary from spouse and children to former spouse and children within 1 year of his final divorce.
____________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) AR20120005231
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ABCMR Record of Proceedings (cont) AR20120005231
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