IN THE CASE OF:
BOARD DATE: 20 March 2014
DOCKET NUMBER: AR20130009451
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 correction of his military records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage.
2. The applicant states:
a. He wants to reinstate SBP coverage for his former spouse because he is legally obligated to provide her this coverage as part of his support settlement. Upon their divorce settlement, he paid for SBP and deducted it from her payment through an allotment. On 2 January 2013, he requested that she receive SBP as part of the divorce settlement and that she be billed directly for SBP. He received a letter, dated 28 January 2013, stating that his request for her payment was denied and his SBP request would be forwarded to the Office of Military Retired Pay.
b. If he had been informed of the 12-month requirement at that time he would have had enough time to submit the required paperwork. He received notification on 13 May 2013 that his SBP coverage was cancelled and his payments were reimbursed. His former spouse now has no coverage upon his death when she is legally entitled.
3. The applicant provides:
* Divorce documentation
* Consent Order
* Defense Finance and Accounting Service (DFAS) letter, dated 28 January 2013
* Retiree Account Statements
CONSIDERATION OF EVIDENCE:
1. The applicant married Leticia on 28 October 1983. He enlisted in the Regular Army on 8 January 1985.
2. His DD Form 2656 (Data for Payment of Retired Personnel), dated
19 December 2005, shows he enrolled in the SBP for spouse coverage, full base amount.
3. He retired in the rank of sergeant major on 31 March 2006 after completing over 21 years of active service.
4. He and Leticia divorced on 31 January 2012. Their Consent Order states "The Defendant (applicant) shall pay the amount due for the Survivor Benefit Plan until the parties' son, John Nicholas Rxxx, completes his graduate program or elects to discontinue his graduate program. Plaintiff (Leticia) shall thereafter make the payment for the Survivor Benefit Plan."
5. He provides a letter, dated 2 January 2013, to DFAS requesting his former spouse be billed directly for SBP payments because their son discontinued his graduate studies in 2010. On 28 January 2013, DFAS responded and stated his request could not be processed because a former spouse must make application for her payments, the retired member cannot initiate payments. He was informed his SBP request would be forwarded to the Office of Military Retired Pay.
6. The applicant married Dina on 13 April 2013.
7. He provides a copy of his Retiree Account Statement, dated 31 May 2013, which shows no SBP election was reflected on his account.
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), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.
10. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
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 applicant requests correction of his military records to show he changed his SBP coverage to former spouse coverage.
2. Although there is no evidence to show that he requested his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit, it appears it was his intention to provide the SBP annuity to the applicant as required by the terms of their divorce settlement (Consent Order). Therefore, it would be equitable to correct his records to show he requested SBP coverage for his former spouse in a timely manner.
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 written request to change his SBP coverage to former spouse on 1 March 2012 and the request was accepted 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) AR20130009451
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ABCMR Record of Proceedings (cont) AR20130009451
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