IN THE CASE OF:
BOARD DATE: 16 May 2013
DOCKET NUMBER: AR20120019043
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 elected to change his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.
2. The applicant states:
* his divorce settlement was submitted to the Defense Finance and Accounting Service (DFAS) twice. He submitted it once and it was submitted by an official at the U.S. Army Garrison, White Sands Missile Range, NM
* his Retiree Account Statement (RAS) shows he is receiving "spouse only" SBP coverage, which is incorrect
* it should show he is receiving "former spouse" SBP coverage
3. The applicant provides:
* his divorce decree
* a memorandum from the Adjutant General, U.S. Army Garrison, White Sands Missile Range, NM, to DFAS, dated 22 March 2010, subject: Retirement Pay in Conjunction with Divorce Settlement [Applicant] Chief Warrant Officer Five (CW5) (Retired)
* a letter from DFAS, to the Adjutant General, U.S. Army Garrison, White Sands Missile Range, NM, dated 8 April 2010
* DFAS Cleveland (DFAS CL) Form 7220/148 (RAS)
CONSIDERATION OF EVIDENCE:
1. On 24 February 1983, after previous enlisted service in the Regular Army, the applicant was appointed as a Reserve warrant officer of the Army, in the rank/grade of warrant officer one (WO1)/W-1. He entered active duty, served in a variety of stateside and overseas assignments, and attained the rank/grade of CW5/W-5.
2. The applicant married his now former spouse, Christine, on 23 March 1985.
3. On 20 January 2005, in preparation for his upcoming retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel), wherein he elected SBP coverage for "spouse only," based on the full amount of his retired pay.
4. On 30 June 2005, he was honorably retired and on 1 July 2005, he was placed on the Retired List.
5. On 30 December 2009, he and his spouse, Christine, were divorced. Their divorce decree stipulated that each party would abide by the terms of their agreed-upon Marital Settlement Agreement (MSA), dated 5 November 2009. Their MSA grants his former spouse entitlement to 50 percent (%) of his current retired pay; however, neither the MSA nor the divorce decree mentions the SBP.
6. He provides memoranda from DFAS and the Adjutant General at White Sands Missile Range that show he submitted the necessary documentation to ensure his former spouse received her share of his retired pay. However, there is no indication he sought to voluntarily change his SBP election from "spouse only" to "former spouse" coverage within 1 year of their effective date of divorce.
7. The applicant states, in a separate email, dated 14 May 2013, that he has not remarried following his divorce.
8. 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. Elections are made by category, not by name.
9. 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. Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
10. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.
11. 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 shows the applicant elected SBP "spouse only" coverage. He and his spouse, Christine, were divorced on 30 December 2009.
2. By his own admission, he has not remarried following his divorce. It appears, based on his application, he wishes to provide SBP coverage to his former spouse. Since he has continued to pay the premiums for SBP coverage, even after the date of his divorce, it would be appropriate to grant the requested relief by correcting his record to show he made a timely application to DFAS to change his SBP election from "spouse only" to "former spouse."
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 elected SBP coverage for former spouse, within 1 year of the date of his divorce (30 December 2009), and that his request was received by DFAS and processed by the appropriate office 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) AR20110002268
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120019043
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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