IN THE CASE OF:
BOARD DATE: 30 July 2013
DOCKET NUMBER: AR20120021985
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 records be corrected to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage.
2. He states when he retired he elected "Spouse Only" SBP coverage for his wife, but on 10 January 2011, he and his wife divorced. As part of the terms of the divorce he agreed to continue to provide his former spouse with SBP coverage. He has been paying SBP premiums since he retired. However, neither he nor his former spouse was aware of the requirement to change the SBP coverage to former spouse coverage within 1 year of their divorce.
3. He provides the following:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email
* Final Divorce Decree with Marital Separation Agreement
* Retirement Account Statement (RAS)
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned a second lieutenant and entered active duty on 21 July 1982. He and his former spouse were married on 14 April 1984. He made an SBP election for spouse coverage at a reduced base amount on
15 September 2008. On 23 September 2008, his spouse concurred. The applicant continued to serve in an active duty status until he retired on 30 September 2008.
2. On 10 January 2011, the applicant and his spouse divorced. The divorce decree states "the [applicant] hereby agrees to designate wife as the beneficiary of his SBP and agrees to provide the appropriate military finance center retired pay office with any necessary forms or other information to accomplish this designation."
3. His RAS for the period 18 September 2012 shows an SBP cost of $169.70 for spouse only coverage. The statement also shows he has paid 47 months towards his 360 months of paid up SBP coverage.
4. 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.
5. 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.
6. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse 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 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 to participate in the SBP for spouse only when he retired. The applicant and his former spouse were divorced on 10 January 2011 and he continued to pay into the plan. In the divorce decree, he agreed to designate his "former wife" as the beneficiary of his SBP and agreed to provide the appropriate military finance center retired pay office with any necessary forms or other information to accomplish this designation.
2. As such, it would be equitable and just to correct the applicant's records to show he voluntarily converted his SBP spouse coverage to former spouse coverage in a timely fashion.
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 made a voluntary change in election from spouse to former spouse on 31 January 2011 and that the request was received 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) AR20120021985
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