BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130021682 


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, the former spouse of a retired service member (RSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse.

2.  The applicant states:

* when her former husband and she were divorced she did not apply for the SBP insurance because he was still on active duty
* the SBP briefing is normally given at the time of retirement of the active duty member
* her divorce decree awarded her 50 percent of the RSM's retired pay per the court order
* she has been told that the SBP was to be applied within one year of the divorce even though the member could not apply while on active duty
* she and her former husband were aware that the request for SBP had a one-year expiration at the time of retirement, not while on active duty

3.  The applicant provides:

* DD Form 2656-10 (Survivor Benefit Plan (SBP/Reserve Component (RC) SBP Request for Deemed Election), dated 24 June 2013
* Page 4 of an 8-page separation agreement 



CONSIDERATION OF EVIDENCE:

1.  The applicant, Jackeline, and the RSM were married on 26 January 1988. 

2.  Having had prior service, the RSM enlisted in the Regular Army on 1 September 1988.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8. 

3.  On 27 February 2009, the RSM and the applicant (Jackleine) entered into a property settlement agreement.  Section VI(C) (Division of Property - Banking and Investment Accounts) states:   

	a.  "The husband hereby assigns to wife (and wife shall receive) 50 percent of the husband's military retirement compensation (it being the intent and purpose of this agreement that the wife shall receive 50 percent of the husband's entire interest in his military retirement compensation." 

	b.  A hand-written entry with initials next to it that reads "Husband agrees to procure survivor's benefits on behalf of the wife.  Wife agrees to pay for any costs associated with the benefits out of her own share of the retired pay." 

4.  On 27 February 2009, the RSM and applicant were divorced.  Their property settlement agreement was incorporated into their Final Judgment and Decree.  

5.   On 24 June 2013, the applicant (Jackeline) submitted to the Defense Finance and Accounting Service (DFAS) a DD Form 2656-10 to deem the election for former spouse SBP coverage. 

6.  On 28 June 2013, the RSM completed a DD Form 2656 (Data for Payment of Retired Personnel) at the Fort Bragg, NC, Retirement Services Office.   He indicated he was married to Fanny on 11 August 2011.  He further elected "former spouse" SBP coverage with a reduced amount of $300.00.  He and a Retirement Services Officer (RSO) signed this form on 28 June 2013.  This form also shows in Section XII - SBP Spouse Concurrence:

Required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage; the date of the spouse signature in item 32n MUST NOT be before the date of the member's signature in item 30b above; the spouse signature MUST be notarized.  

Item 32 (Spouse) is neither signed by the RSM's spouse nor is her signature notarized. 
7.  Also on 28 June 2013, the RSM completed a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage).  The RSM indicated he was married to the former spouse on 26 January 1988 and they were divorced on 27 February 2009.  Item 11 (Remarks) of this form shows the entry "Soldier elected reduced coverage of $300.00"  The RSM and RSO authenticated this form with their signatures.   Item 13 (Former Spouse to Be Covered) listed the applicant's name (Jackeline), social security number, and address.  

8.  On 1 July 2013, by letter, the RSO notified the applicant (Jackeline) that her former husband had submitted a DD Form 2656-1 to comply with a court order under the Uniformed Services Former Spouse Protection Act which listed her as the beneficiary for the SBP upon his death.  The RSO also informed her that her signature was required on the DD Form 2656-1.  She was asked to sign the form and provide a certified copy of her divorce decree, amendment, or any other documentation using a self-addressed envelope. 

9.  There is no indication the applicant signed the DD Form 2656-1 and returned it to the RSO. 

10.  The RSM retired on 31 October 2013.  He completed over 28 years of creditable active service.  

11.  On 26 November 2013, by fax, the RSO submitted to DFAS copies of the RSM's DD Form 2656, DD Form 2656-1, property settlement agreement, and final divorce decree.  

12.  The RSM's retired pay records show he currently has:

* "spouse" SBP coverage (automatic coverage)
* A monthly premium of $243.04/month
* No arrears of pay beneficiary listed

13.  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

14.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so chose.  

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) 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.

17.  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.  The evidence of record shows that in connection with his retirement in 2013 the RSM elected SBP coverage for former spouse.  He and the RSO signed this form.  However, despite being married at the time and despite the clear language on the form that his spouse must concur with any SBP election other than spouse coverage at the full amount, for unknown reasons, his spouse did not sign the form and her signature was not notarized.  This made his election an invalid election and his coverage defaulted to spouse coverage.

2.  A spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected.  A court order by itself cannot be used to institute coverage.  

3.  The law allows a former spouse to deem the election if the retiree has been ordered by the court to make a former spouse election.  Under Federal law, a request for deemed election must be received from the former spouse within one year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the one-year period in which the retiree is allowed to make an election.
4.  SBP elections are made by category, not by name.  Once the RSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse, not his former spouse, if they have been married for at least 1 year.

5.  Notwithstanding the applicant's sincerity and the RSM's attempt to submit a former spouse election, the RSM's records may not be corrected to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law.  The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the RSM's current spouse renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current spouse was a party, divesting the current spouse of her interest in the SBP.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ____X____  __X______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20130021682





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ABCMR Record of Proceedings (cont)                                         AR20130021682



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