BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130013035 


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 defers his request, statement, and evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he selected former spouse coverage under the Reserve Component Survivor Benefit Plan (RCSBP) in a timely manner.

2.  Counsel states:

	a.  The applicant's prior counsel did not submit the required court order for his SBP designation to be changed from spouse to former spouse.  The applicant and his former spouse, Laurie, were married on19 December 1976 and they were divorced on 17 January 2002.  There were no children born of this marriage.

	b.  Prior to their divorce, the applicant designated his spouse at the time, Laurie, as his SBP beneficiary.  In their divorce settlement agreement, they both clearly contemplated that his former spouse would remain his sole SBP beneficiary.  In April 2008, immediately prior to his retirement, he submitted an application to re-designate his former spouse as his SBP beneficiary.  He was placed on the Retired List on 31 May 2008.

	c.  The applicant's prior counsel did not submit the required court order for his SBP designation to be changed from spouse to former spouse within 1 year of their divorce.  The applicant suspected there was a procedural deficiency and retained this firm to attempt to correct it.  He consented to the designation of Laurie as his former spouse under SBP as required in the original court order and consents to it now.  He has remarried and his current spouse, Frances, consents to the designation of his SBP beneficiary as former spouse.

	d.  The request to correct the applicant's records is necessary to effectuate the original intent of the applicant and his former spouse and the order of the DeKalb County Superior Court, which incorporated their settlement agreement into its final judgment and divorce decree on 17 January 2002.  This correction will not cause the U.S. Government to incur any additional expense.

3.  Counsel provides on behalf of the applicant:

* DD Form 2656-10 (SBP/RCSBP Request for Deemed Election), dated 20 March 2013
* affidavit from the applicant, dated 8 May 2012
* affidavit from the applicant's spouse, dated 8 May 2012
* attorney/client agreement, dated 10 April 2012
* orders, dated 16 May 2008
* DD Form 2656 (Data for Payment of Retired Personnel), dated 25 April 2008
* DD Form 108, dated 24 December 2008
* Army Reserve Personnel Command (ARPC) Form 249-2 (Chronological Statement of Retirement Points)
* divorcee decree, dated 17 January 2002
* settlement agreement, dated 5 December 2001
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two marriage certificates, dated 19 December 1976 and 1 April 2006
* five letters, dated between 14 May 1971 and 29 April 2013


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on XX May 1948.  He was appointed as a U.S. Army Reserve (USAR) second lieutenant on 14 May 1971.  He served in staff and leadership positions and he attained the rank/grade of colonel (COL)/O-6 in the USAR on 29 November 1996.

3.  He and his former spouse, Laurie, were married on 19 December 1976.

4.  On 5 August 1998, the USAR Personnel Command issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

5.  The applicant's records contain a DD Form 1883 (SBP Election Certificate), dated 30 October 1998, wherein it shows that at that time he was married to Laurie and had no dependent children.  He elected RCSBP "spouse" coverage full annuity, Option B (at age 60).

6.  On 5 December 2001, the applicant and his spouse Laurie entered into a settlement agreement.  The agreement stated, in part, Laurie was to receive a portion of his retirement pay after deduction of the cost of SBP and the applicant agreed to maintain his spouse election under the RCSBP.  As such, the court requested the RCSBP election to be "deemed" on the part of Laurie.

7.  He and his first spouse, Laurie, were divorced on 17 January 2002.  The settlement agreement was incorporated into their final judgment and divorce decree.

8.  There is no evidence that shows within 1 year of the divorce decree the applicant or his former spouse requested his SBP election be changed from spouse to former spouse based on the settlement agreement.

9.  On 1 April 2006, the applicant and his current spouse, Frances, were married.

10.  Orders P05-806885, dated 16 May 2008, issued by the U.S. Army Human Resources Command (HRC), retired the applicant and placed him on the Retired List on 31 May 2008.

11.  Counsel provides a notarized affidavit wherein the applicant stated he and his former spouse Laurie were divorced on 17 January 2002.  On 5 December 2001, they voluntarily entered into a settlement agreement wherein he agreed to maintain his former spouse [and spouse at the time] as his SBP beneficiary.  When they divorced, he was unaware that additional paperwork was required to re-designate her as the "former spouse" in order to secure her status as his SBP beneficiary.  It is now, and always has been, his intent that his former spouse be designated as his SBP beneficiary, pursuant to the settlement agreement that was incorporated into his and his former spouse's divorce decree.  The applicant and the notary public authenticated this affidavit by placing their signatures in the appropriate blocks on 8 May 2012.

12.  Counsel provides a notarized affidavit wherein the applicant's spouse Frances stated she consented to the designation of the applicant's former spouse Laurie as the "former spouse" beneficiary for his SBP, pursuant to the settlement agreement that was incorporated into the applicant's and his former spouse's divorce decree on 17 January 2002.  The applicant's spouse Francis and the notary public authenticated this affidavit by placing their signatures in the appropriate blocks on 8 May 2012.

13.  On 26 March 2014, by email, a Defense Finance and Accounting Service (DFAS) official verified that on 30 November 1998 the applicant elected RCSBP "spouse" coverage, Option B.  Upon his retirement, this RCSBP election carried over to his SBP election and he currently has full "spouse" coverage.  The name of his spouse is listed as Francis. 

14.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 (and eligible to participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options are available.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.

* Option (A) - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option (B) - elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday
* Option (C) - elect that a beneficiary receive an annuity immediately upon their death if before age 60

15.  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 retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  Title 10, U.S. Code, section 1448(b)(3) 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's counsel requests the correction of the applicant's records to show he elected SBP coverage for "former spouse" in a timely manner.

2.  In 1998, upon receipt of his Twenty-Year Letter, the applicant elected RCSBP "spouse" coverage under Option B (effective at age 60), full coverage for his spouse at the time, Laurie.

3.  The evidence of record confirms on 5 December 2001, he and Laurie entered into a settlement agreement wherein he agreed he would maintain Laurie as the beneficiary of his SBP.  He and Laurie were divorced on 17 January 2002 and the settlement agreement was incorporated into the divorce decree. 

4.  Counsel stated that in 2008 the applicant requested DFAS correct his records to show he elected former spouse coverage vice spouse coverage.  However, DFAS would not process his request as it was received more than 1 year after the date of the divorce decree.

5.  The applicant married his spouse Frances on 1 April 2006.  Counsel provides a notarized affidavit wherein the applicant's spouse Frances stated she consented to the designation of the applicant's former spouse Laurie as the "former spouse" beneficiary for his SBP.  

6.  The former spouse should not be punished because she and the applicant were unaware of the requirement to file his former spouse election within 1 year of the divorce decree.  Therefore, it would be appropriate as a matter of equity to grant the applicant relief and show he submitted his request for a change in SBP election from "spouse" to "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 request for his SBP election to be changed from "spouse" to "former spouse" on 18 January 2002 and DFAS timely received and accepted his change in election. 



      __________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)                                         AR20130013035





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ABCMR Record of Proceedings (cont)                                         AR20130013035



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