BOARD DATE: 18 July 2013
DOCKET NUMBER: AR20120020057
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 his level of protection under the Survivor Benefit Plan (SBP) be raised to a level that will afford his former spouse the equivalent of
40 percent of his retired pay.
2. The applicant states, in effect, at the time of his retirement he elected the threshold (minimum) amount of coverage under the SBP; however, 6 months later he and his wife divorced and the divorce decree issued in New Mexico provides that he make an SBP election that will provide his former spouse SBP coverage that will afford her the same benefit after his death as she had before his death. He also states he contacted DFAS officials and he was told to apply to the Board.
3. The applicant provides:
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Judgment and Final Decree of Dissolution of Marriage
* a letter to his former spouse from DFAS, dated 14 May 2012
CONSIDERATION OF EVIDENCE:
1. On 25 February 2011, the applicant and his spouse completed a DD Form 2656 (Data for Payment of Retired Personnel) and made an election for coverage under the SBP based on the threshold amount in effect at the time of retirement.
2. On 30 June 2011, the applicant was retired by reason of sufficient service for retirement and he was transferred to the Retired List in the rank of major effective 1 July 2011.
3. On 6 January 2012, the applicant and his spouse were divorced in New Mexico. The divorce decree specified that the applicant was required to make the necessary election in a timely manner to effectuate SBP coverage for the former spouse to ensure SBP that will provide the former spouse the same benefit payments after his death as she was eligible to receive before his death.
4. Officials at DFAS were provided a copy of the applicant's divorce decree and his SBP coverage was changed to former spouse coverage.
5. Public Law 92-425, enacted 21 September 1972, and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Election of beneficiaries is made by category only, not by name. Except as provided by law, an election, once made, is irrevocable.
6. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.
7. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's 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.
8. 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.
9. Periodically, Congress authorizes an "Open Season" to allow members who are not utilizing the SBP to its fullest extent to make changes to their coverage. Announcements are normally made through the Army "ECHOES," a retirement bulletin made available to retirees to keep them abreast of changes that occur in the Army and its programs.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions and supporting documents have been noted; however, there is no error or injustice in his case as the applicant's election made prior to his retirement is currently in force.
2. While it is understandable why the applicant desires to change his level of participation in the SBP, the directives in the divorce decree are not enforceable as they are contrary to Federal statutes that provide that an SBP election once made is irrevocable.
3. Therefore, it appears that the only relief available to the applicant under current statutes is to take advantage of an Open Season should Congress decide to authorize one.
4. Accordingly, there appears to be no basis to grant the applicant's request.
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) AR20120020057
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ABCMR Record of Proceedings (cont) AR20120020057
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