IN THE CASE OF:
BOARD DATE: 30 April 2013
DOCKET NUMBER: AR20120018759
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 records to show he changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse within one year of his divorce.
2. He states that he believes he took the necessary action to change the SBP by court order. He did not know a DD Form 2656 (Data for Payment of Retired Personnel) needed to be completed within 1 year of the divorce. He has been paying SBP premiums and he has been in good standing for the SBP since he retired believing his former spouse would receive the SBP upon his death. He has not remarried. He was just recently made aware of the situation.
3. The applicant provides:
* Marital Separation Agreement Form 14 (Child Support Amount Calculation Worksheet)
* Divorce Decree
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed in the U.S. Army Reserve, as a second lieutenant, on 16 December 1986. He was ordered to active duty and entered active duty on 29 November 1987.
2. On 19 September 2003, he requested voluntary retirement with an effective date of 29 February 2004.
3. A DD Form 2656, dated 4 December 2003, Item 14 (Marital Status) shows he indicated he was married. Item 23 (Date of Marriage) shows he and his former spouse were married on 15 March 1985. This form shows he elected spouse coverage, full base amount.
4. He was honorably retired on 29 February 2004.
5. He provides of copy of his marital separation agreement, dated 27 July 2007. It stipulates the applicant would continue SBP coverage for his former spouse. The divorce decree shows he and his former spouse were granted a divorce on 10 September 2007. Neither the applicant nor his former spouse submitted a request to change his SBP election from spouse to former spouse within one year of divorce.
6. On 18 April 2013, a staff member of the Defense Finance and Accounting Service (DFAS) verified the applicant has been paying "spouse" only SBP premiums since 1 March 2004 and is still paying those premiums
7. 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.
8. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
9. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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 one 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 applicant's contention was carefully considered and found to have merit.
2. The evidence of record shows the applicant retired on 29 February 2004 and elected SBP spouse coverage. He and his former spouse were divorced on 10 September 2007.
3. It appears he did not notify DFAS of his divorce or otherwise attempt to change his SBP election from spouse to former spouse. However, he continues to pay SBP premiums and has indicated he intends to honor the terms of his divorce.
4. Considering the facts and circumstances of this case, and since there is no current spouse with a vested interest, it would now be appropriate as a matter of fairness and equity to correct the applicant's records to show he requested to change his SBP election to former spouse coverage within 1 year of his 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 changed his SBP election from "spouse" to "former spouse" coverage within 1 year of their divorce on 10 September 2007 and his request was timely received and processed by the appropriate DFAS office.
___________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) AR20120018759
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120018759
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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