IN THE CASE OF:
BOARD DATE: 22 May 2014
DOCKET NUMBER: AR20130013941
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 records to show he elected former spouse coverage under the Survivor Benefit Plan (SBP) within 12 months of his divorce.
2. He states he has paid SBP premiums on behalf of his former spouse continuously since his retirement and their subsequent divorce as required by court order. He was not aware of the requirement to elect former spouse coverage. Once he became aware of the requirement, he submitted a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), but the change was denied because it was made outside of the 1-year period following the divorce.
3. He provides a DD Form 2656-1, a Final Judgment and Decree of Divorce with an attached Memorandum of Settlement, and a notarized statement signed by his current spouse.
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. On 31 December 2004, the applicant retired from active duty as a member of the U.S. Army Reserve by reason of sufficient service for retirement. Prior to his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 12 October 2004.
a. In Section VIII (Dependency Information), he listed K____ as his spouse and he listed a son.
b. In Section IX (SBP Election) he selected coverage for spouse and child based on full gross pay without supplemental SBP.
3. During the processing of this case, the Defense Finance and Accounting Service (DFAS) confirmed that K____ is listed as the applicant's SBP beneficiary.
4. He provided the following documents. These documents are also filed in his DFAS records.
a. A Final Judgment and Decree of Divorce with an attached Memorandum of Settlement shows he and K____ were divorced on 3 October 2008. The Memorandum of Settlement was made part of the Final Judgment and Decree of Divorce and shows he was to bear the expense of the SBP.
b. A DD Form 2656-1 bears his undated signature; an undated witness signature; and K____'s signature, dated 27 March 2013. The form shows he requested a change of his SBP election to former spouse coverage. He indicated he was currently married and the election was being made pursuant to a court-approved written agreement entered into voluntarily as part of his divorce.
5. He provided a notarized statement signed by his current spouse, C____, in which she states:
* she concurs with the SBP election change to former spouse coverage requested by the applicant
* she understands she is now the lawful SBP beneficiary
* by signing the statement, she is waiving her property rights to the SBP
* she understands her decision is irrevocable
* she signed the statement of her own free will
6. 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. An election, once made, was irrevocable except in certain circumstances.
7. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses 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 applicant agreed to bear the expense of the SBP as part of his settlement agreement with K____. The settlement agreement was made a part of their final divorce decree.
2. Although the applicant has since remarried, his current spouse has stated she concurs with his request and she waives her property rights to the SBP.
3. The evidence shows the only barrier to the applicant naming his former spouse as his SBP beneficiary is the fact that he did not submit his election within 1 year of his divorce. In light of the available evidence, it would be appropriate to correct his records to show his election for former spouse SBP coverage was received and processed 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 the evidence presented is 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 his election for former spouse SBP coverage was processed and accepted on 4 October 2008.
____________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) AR20130013941
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ABCMR Record of Proceedings (cont) AR20130013941
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