IN THE CASE OF:  

		BOARD DATE:	18 June 2013

		DOCKET NUMBER:  AR20120021062 


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 former spouse be restored as the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states that:

	a.  Neither he nor his former spouse were ever informed of the requirement to elect a former spouse for the SBP upon the dissolution of the marriage.  Nor were they ever in receipt of the required election form.  His former spouse was named as the beneficiary of his SBP upon his retirement and it was always his intention that she remain so.

	b.  He is perplexed at the stand taken by the Defense Finance and Accounting Service (DFAS) regarding his former spouse as SBP beneficiary.  As his original retirement SBP paperwork specifies, "the election I make before retirement is, in general, permanent and irrevocable by me."  He was also unaware that DFAS could remove an SBP beneficiary without permission of the sponsor or notifying either the sponsor or the beneficiary.

	c.  He only discovered the one-year new election provision a year ago, many years after his divorce and retirement.  He has been dealing with DFAS for months trying to get this resolved and their final determination is that they cannot (will not) make his change based on the absence of a form that he has never received.  

	
3.  The applicant provides:

* 10 July 1992, Notification of Eligibility for Retired Pay at Age 60 letter
* 20 February 1998, Decree of Dissolution of Marriage
* 15 January 2011, DFAS letter 

CONSIDERATION OF EVIDENCE:

1.  The applicant retired effective 15 January 2006 as a colonel/O-6. 

2.  He provides:

	a.  His 10 July 1992 notification of eligibility for Retired Pay at Age 60 letter showing he acknowledged he had been counseled, in writing, concerning SBP elections and that after he retired the election he made before retirement was, in general, permanent and irrevocable by him.  His then spouse signed concurring with the applicant's election.

	b.  A 20 February 1998 Decree of Dissolution of Marriage which shows in item 2C:  "Petitioner shall remain designated under the Uniformed Services Survivor Benefit Plan and shall receive said benefits in case of Petitioner's death. Co-Petitioner shall provide proof to the court of said designation." 

	c.  A 15 January 2011 DFAS letter to the applicant stating that they could not process his SBP request because a complete copy of the final divorce decree signed and dated by a judge was missing.  The letter further relates that the applicant's former spouse is no longer eligible for his SBP coverage since an election was never made within the one-year deadline of his divorce.  However, his current spouse will be eligible and can be placed on his SBP coverage with an effective date of the one-year anniversary of his marriage date.

	d.  On 11 June 2013, the applicant informed the analyst that he is currently married and had been for the past 15 years.

3.  Public Law 92-425, enacted 21 September 1972, 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. Elections are made by category, not by name.  An election, once made, was irrevocable except in certain circumstances

4.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  
5.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists.  

6.  Public Law 98-525, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage.

7.  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 available evidence shows the applicant and his former spouse were divorced on 20 February 1998.  The applicant states that neither he nor his former spouse took any action related to his SBP beneficiary status within one year after the divorce.

2.  Upon his divorce, and in the absence of timely action to change the SBP coverage from spouse to former spouse, the applicant's original spouse coverage went into suspended status.  Spouse coverage resumed for his current spouse on their one-year anniversary.

3.  SBP elections are made by category, not by name.  Once the applicant and his former spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary as his spouse.  He did not make a former spouse election within one year of the divorce although the divorce decree required him to show he had done so.   She did not deem the election within one year of her divorce although her attorney should have known that one or the other actions were necessary.  Accordingly, applicant's current spouse has a vested interest in SBP and cannot be divested of her interest without due process.

4.  In view of the above, recommend denial of 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)                                         AR20120006783



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ABCMR Record of Proceedings (cont)                                         AR20120021062



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