IN THE CASE OF:
BOARD DATE: 18 September 2014
DOCKET NUMBER: AR20140001342
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, in effect, correction of his records to show he elected to change his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce.
2. The applicant states:
a. His divorce decree and property settlement and the Virginia Court Order gives his former spouse all her normal military benefits, such as identification cards, healthcare, and directs that she retain survivor benefits for both her and their children. Both the applicant and his former spouse's attorney provided the divorce decree to the U.S. Army Human Resources Command (HRC), Army Reserve Personnel Center (ARPERCEN), and the Defense Finance and Accounting Service (DFAS) several times over the past years.
b. During the time of their divorce, the applicant discussed the issue with the Fort Belvoir Judge Advocate General (JAG) Legal Assistance Office and was advised that given the Virginia Court Order and sending in the initial SBP election documentation and divorce decree, no additional steps were needed to ensure she retains her valuable benefits.
c. When he began the process for his retirement he called HRC and was advised that his divorce paperwork was never processed by HRC, ARPERCEN, or DFAS. He was also advised that there is a special form he needed to send to HRC within one year of his divorce to request his former spouse and children be the beneficiaries of his SBP.
d. Knowing his family is currently not covered, but he is paying for the service, makes him very concerned.
3. The applicant provides:
* DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), unsigned and undated
* DD Form 1883 (SBP Election Certificate), dated 30 January 1999
* final divorce decree, dated 5 June 2008
* separation and property settlement agreement, dated 28 June 2007
* SBP Information Pamphlet
CONSIDERATION OF EVIDENCE:
1. The applicant is a U.S. Army Reserve (USAR) lieutenant colonel in the Retired Reserve. He will be 60 years old on 28 August 2020.
2. The applicant provides a DD Form 1883, dated 30 January 1999, showing he was married to Axxxxx and had two unmarried dependent children. He elected full SBP coverage, under Option C, for an immediate annuity beginning on the day after his death whether before or after age 60.
3. He and Axxxxx divorced on 5 June 2008. Their Divorce Decree shows they had married on 18 November 1983. A 28 June 2007 Property Settlement Agreement was incorporated into their Divorce Decree. The Property Settlement states: Husband agrees to continue to maintain the current Survivor Benefit Plan (SBP) naming the Wife as the maximum-coverage beneficiary for as long as Husband and Wife shall both live and he agrees to take any action following the entry of any Final Decree of Divorce to ensure the Wife's continued maximum coverage as a former spouse irrevocable beneficiary.
4. There is no indication that the applicant changed his SBP coverage from "spouse" to "former spouse" coverage. Additionally, there is no indication his former spouse, Axxxxx, made a request for a deemed election.
5. He provides an unsigned, undated, DD Form 2656-1 showing he divorced his former spouse on 8 June 2008 and has not remarried.
6. 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.
8. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.
9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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.
10. 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.
11. 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 the applicant elected SBP spouse and children coverage. He and his spouse, Axxxxx, were divorced on 5 June 2008 and their divorce decree stipulated Axxxxx would be the designated beneficiary of his SBP. There is no indication that he submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of his divorce.
2. Because SBP elections are made by category, not by name, once the applicant and his spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. He was required to make a former spouse election as stipulated in the divorce decree. However, he has not remarried and he states he is still paying SBP premiums.
3. Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" and, as such and only as a matter of equity, his record should be corrected to show he did so within one year of his divorce and that his request was received and processed by DFAS 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 he elected SBP coverage for former spouse within one year of his divorce on 5 June 2008, on 6 June 2008, and that his request was received by DFAS 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) AR20110002268
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140001342
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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