IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120019319 


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 to his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse within 1 year of his divorce.

2.  The applicant states:

	a.  He and his former spouse were granted a divorce on 10 December 2010.  The divorce decree stipulated that his former spouse would be designated as his beneficiary for the SBP.  He was not eligible to apply for retirement until he reached age 60, which was xx January 2012.  Consequently, he did not file for SBP for his former spouse until June 2012, which was beyond the deemed election period for SBP coverage.

	b.  During this period, his former spouse's grandmother, whom he dearly loved and respected, expired in March 2011 and his step-daughter was involved in a horrendous motorcycle accident in September 2011.  This consequently took his concentration away from filing for the SBP for his former spouse in a timely manner.  

	c.  In June 2012, he completed and filed a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage).  His former spouse contacted the Defense Finance and Accounting Service (DFAS) and was advised the SBP election was invalid since the document was outside of the 1-year period for consideration.  

3.  The applicant provides:

* Marriage License
* Final Decree of Absolute Divorce
* DA Form 2656-1
* two letters from DFAS, Cleveland, OH
* a letter from DFAS, London, KY

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the District of Columbia Army National Guard (DCARNG) on 24 March 1980.

2.  He and his former spouse were married on 12 May 1997.

3.  On 14 November 2009, he was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).

4.  His record contains a DD Form 2656-5 (RCSBP Election Certificate), dated 19 January 2010, which shows in Section II (Marital/Dependency Status) he indicated he was married on 12 May 1997.  In Section III (Spouse/Dependent Children Information) he listed his former spouse's name.  In Section IV (Coverage) he elected "Option C” (Immediate Annuity) and checked the "spouse only" and "Natural Person with an Insurable Interest" boxes for "full" coverage.  The form was signed by the applicant on 19 January 2010.

5.  He was honorably discharged from the DCARNG on 7 May 2010 and he was transferred to the Retired Reserve.

6.  On 10 December 2010, he and his former spouse were granted a divorce.  The final judgment shows he did not object to his former spouse receiving any and all military benefits to which she was entitled.

7.  He reached age 60 on xx January 2012 and he was placed on the retired list in pay grade E-6 on this date.

8.  The applicant provided a DD Form 2656-6, dated 16 June 2012, which shows he indicated he wished to change his SBP election from spouse to former spouse due to divorce.  He also indicated he was not currently married to another individual and the election was being made pursuant to the requirements of a court order and written agreement entered as part of the divorce.  He also indicated his former spouse had not remarried.  This form is dated 16 June 2012, and it contains the applicant's, former spouse’s, and the witness's signatures.

9.  On 3 May 2013, a DFAS staff member verified that no SBP deductions were being made from the applicant's retired pay and there was no current election beneficiary.

10.  Public Law 97-252, the Unformed Services Former Spouse's Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.

11.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.

12.  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 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 evidence of record shows the applicant was discharged from the DCARNG on 29 May 2010 and elected SBP coverage.  He and his former spouse were divorced on 10 December 2010.  He retired upon reaching his 60th birthday in January 2012.  He applied for SBP for his former spouse in June 2012.

2.  SBP elections are made by category, not by name.  Once the applicant and his former spouse were divorced, the now former spouse was no longer an eligible SBP beneficiary.  A change of the SBP election was required to have been made within 1 year of their divorce either by the applicant pursuant to the terms of the divorce decree or purely as a voluntary act or by his former spouse via a "deemed election" request.  There is no evidence either party acted in a timely manner.

3.  The applicant states two major consequences prevented him from filing for SBP for his former spouse in a timely manner.  He also indicated he wishes to honor the term of his divorce decree.

4.  Considering the facts and circumstances of this case and since there is no current spouse with a vested interest it would be appropriate as a matter of equity to correct the applicant's records to show he requested to change his SBP election from spouse to former spouse 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 December 2010 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)                                         AR20120019319



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019319

   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1