IN THE CASE OF:
BOARD DATE: 22 January 2013
DOCKET NUMBER: AR20120011395
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 she be designated as a former spouse beneficiary for her former spouses Survivor Benefit Plan (SBP) benefits.
2. The applicant states that she was never notified as a former spouse that she had to make notification for a deemed election of former spouse within 1 year of their divorce. She goes on to state that she thought it would be automatic and because it was a difficult time for her and her children and not being aware of such procedures, she did not make the election change. She further states that her divorce decree designates her as a former spouse with children and she believes that she should be entitled to SBP benefits.
3. The applicant provides a copy of a DD Form 2656 (Data for Payment of Retired Pay), dated 23 September 1999, and a copy of her Divorce Decree.
CONSIDERATION OF EVIDENCE:
1. The applicants former spouse enlisted in the Regular Army on 7 July 1979. He married the applicant on 17 December 1985 and two children were born of that marriage. He was serving at Fort Stewart, Georgia in the pay grade of E-7 when he applied for retirement to be effective 31 March 2000.
2. On 23 September 1999, her former spouse elected not to participate in the SBP. The applicant indicated, by her signature on the DD Form 2656, that she
had received information which explained the options available to her and the effects of those options. She concurred with the SBP election made by her spouse and her signature was witnessed by a third party. Accordingly, he was not enrolled in the SBP.
3. On 31 March 2000, her former spouse was retired and was transferred to the Retired List effective 1 April 2000. He had served 20 years, 8 months, and 25 days of active service.
4. The divorce decree provided by the applicant shows that she and her former spouse were divorced on 16 November 2001.
5. A review of the divorce decree provided by the applicant fails to show any language by the court requiring the former spouse to name the applicant as an SBP beneficiary.
6. SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members. As a Federal Government insurance program, mainly subsidized by participant premiums, it is strictly governed by Federal Statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries. Retirees do not earn SBP through their service they earn the right to participate in SBP. As with any private insurance endeavor, it is incumbent upon individuals to timely apply to participate.
7. Title 10, U.S. Code, section 1448, provides, in part, that effective 1 March 1986, a married member is enrolled in the SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. Section 1454 states, in part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
8. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.
9. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. 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. 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 within1-year of the date of the court order or filing involved.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been noted and appear to lack merit.
2. The applicants assertion that she should be named as a former spouse beneficiary of her former spouses SBP because she was deemed to be a former spouse by the divorce decree has no merit. Her former spouse declined participation in the SBP and the applicant concurred with that decision at the time.
3. Therefore, since her former spouse was never enrolled in the SBP, she is not eligible to be named a beneficiary as the former spouse has no entitlements to SBP benefits.
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) AR20120011395
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120011395
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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