IN THE CASE OF:	  

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130011092 


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:

The applicant, now deceased, defers his request to counsel and provides no statements or additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he requested a change to his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce.

2.  Counsel states:

   a.  On 26 May 1984, the applicant and his former spouse were married.  The applicant was still a member of the Army at the time.  After approximately
16 years of marriage, the former spouse initiated divorce proceedings on 
4 March 1997.  They were granted a dissolution of their marriage on 24 August 2000.  The applicant has not remarried.

   b.  As part of the divorce decree, the former spouse was awarded a "pro rate share of the former spouse survivor annuity."  Accordingly, they had 1 year from the date of divorce to elect former spouse coverage of the SBP.  Neither the applicant and his attorney nor the former spouse and her attorney notified the appropriate authority of their election within the 1-year period.

   c.  The applicant did not become aware of the error until his former spouse notified him that the election had to be made within 1 year of their divorce.  Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  In this case, the applicant learned of the error on 7 April 2013 and 3 years has not passed since the discovery of the alleged error.

   d.  The applicant has not remarried since the divorce from his former spouse. Thus, there is no new spouse who has been elected to receive the SBP upon the applicant's death.  As a result, there would be no injustice done to any party should the applicant's application be granted.  Granting him the requested relief would not deprive any other person of the SBP.

   e.  Upon learning of the divorce proceedings initiated against him, the applicant retained an attorney to represent him.  That attorney was present throughout the divorce proceedings and was the attorney of record for the entirety of the divorce.  The applicant believed that his attorney would complete the necessary forms to effectuate the terms of the divorce judgment.  Unfortunately, his attorney did not complete the necessary and appropriate form within the 1-year period to have the former spouse receive the SBP.  

   f.  The former spouse, who initiated the divorce proceedings against the applicant, did not make the appropriate election within the required 1-year period. The applicant believed that the former spouse or her attorney would make the election for former spouse SBP coverage because she wanted and initiated the divorce.  There is no provision in the divorce decree that directed either party to make the former spouse SBP election within the 1-year period.  Thus, neither party made the appropriate SBP election within the 1-year period.

   g.  The applicant is a retired captain, who initially entered active duty on 15 February 1966.  He was honorably retired on 24 August 1996 and was credited with completing over 30 years of faithful honorable active service.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the U.S. Army Reserve, with prior enlisted service, and entered active duty on 12 December 1967.  He was released from active duty on 6 December 1969 and was transferred to the USAR Control Group (Reinforcement).

2.  On 29 June 1995, upon notification of his involuntary separation from the Selected Reserve, he elected to be transferred to the Retired Reserve with Special Separation Pay.
3.  He served continuously in the USAR until he was transferred to the Retired Reserve on 1 August 1995.

4.  Counsel states the applicant and his former spouse were divorced on 24 August 2000 and their divorce decree awarded the former spouse a "pro rate share of the former spouse survivor annuity."

5.  He reached age 60 on xx September 2003.

6.  The Defense Finance and Accounting Service (DFAS) provided the Board a copy of the applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 15 December 2012, which shows in:

* Section VII (Dependency Information (This section must be completed regardless of SBP election) – he left blank
* Section IX (SBP Election) – he elected coverage for "children only" and indicated he did not have a spouse; he did not elect coverage for his former spouse
* Section VII (Dependency Information) lists in item 25 (Dependent Children) the following

* Bxxxx (son) with a date of birth (DOB) of xx December 1985
* Sxxxxx (daughter) with a DOB of X November 1984
* Bxxxxxx (son) with a DOB of XX December 1992

* Section IX (SBP Election) does not show he elected coverage for former spouse or former spouse and dependent children of that marriage

7.  DD Form 2656 Instructions state in:

* Section VIII, Item 22a – provide your spouse's name, if none enter "N/A" 
* Section IX – Mark Item 26e (I Elect Coverage For My Former Spouse) if you desire coverage for a former spouse; the DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), must also be completed and accompany the completed DD Form 2656 to DFAS-Cleveland

8.  A DD Form 1300, prepared on 25 July 2013, shows the applicant died on 30 June 2013.

9.  His son, Bxxxxxx, would have been 20 years of age at the time applicant's death.  DFAS informed this office that no child has applied for the SBP annuity.

10.  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.  

11.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members within 1 year of divorce.  

12.  Public Law 99-145, effective 1 March 1986) 28 October 1986), provided that a spouse's written concurrence was required for retiring member's election that provide less than maximum spouse coverage.  Open season permitted members with any SBP option to make a new former spouse and former spouse and children elections until 8 November 1986.

13.  Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  It is unclear what, if any, Reserve Component SBP election the applicant made upon receipt of his 20-year letter.  He was reassigned to the Retired Reserve on 1 August 1995.  He and his former spouse were divorced on
24 August 2000 and their divorce decree stipulated award of an SBP annuity to his former spouse.  

2.  There is no evidence of record and neither the applicant nor counsel provided any evidence to show he or his former spouse submitted an election to establish former spouse coverage within the required 1-year period (24 August 2001), but counsel acknowledges that neither did.

3.  He reached age 60 on 13 September 2003.  On 15 December 2012, he executed a DD Form 2656, where he indicated he was not married and elected "children only" SBP coverage.  He did not make an election for SBP coverage for former spouse or former spouse and dependent children of that marriage at the time.  

4.  Notwithstanding the failure of the applicant and his former spouse to make a timely effort to establish former spouse and children coverage, a court of competent jurisdiction awarded former spouse coverage.  The applicant simply wanted to comply with the terms of his divorce.  DFAS has stated that no child has applied for the SBP annuity.  Accordingly, as a matter of equity, it is appropriate to correct his record to show that he made a timely election of former spouse and children coverage.

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 timely election of former spouse and children SBP coverage.




      _______ _   __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)                                         AR20130011092



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011092



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1