IN THE CASE OF:
BOARD DATE: 7 October 2014
DOCKET NUMBER: AR20140001622
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 that his Survivor Benefit Plan (SBP) election be changed from 100% to 20% coverage.
2. The applicant states that he was going through an ugly divorce at the time he retired on 1 March 2013 and his divorce decree was signed in May 2013 and directed that his SBP be awarded at 20% instead of 100%.
3. The applicant provides copies of his DD Form 2656 (Data for Payment of Retired Personnel) and divorce decree.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving on active duty as a Regular Army lieutenant colonel on 9 November 2012 when he elected full spouse coverage under the SBP.
2. On 28 February 2013, the applicant was honorably retired by reason of sufficient service for retirement. He had served 23 years, 7 months and 29 days of active service and was placed on the Retired List effective 1 March 2013.
3. On 9 May 2013, the applicant was divorced from his spouse and the divorce decree provided that his spouse would be the beneficiary of his SBP in an amount sufficient to provide her with a monthly benefit equal to 20% of the applicants gross retired pay and further stated that her eligibility for SBP benefits would not be terminated upon her remarriage.
4. 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. Election of beneficiaries is made by category only, not by name. Except as provided by law, an election, once made, is irrevocable.
5. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.
6. 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 member was participating in the SBP or was still on active duty and had not yet made an SBP election.
7. 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 one 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.
8. Public Law 92-425, the SBP, enacted 21 September 1972 provides, in pertinent part, that in order to retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarried before age 55, eligibility may be regained if that marriage is terminated by death, divorce or annulment.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions and supporting documents have been noted; however, there is no error or injustice in his case as the applicant's election made prior to his retirement is currently in force.
2. While it is understandable why the applicant desires to change his level of participation in the SBP, the directives in the divorce decree are not enforceable as they are contrary to Federal statutes that states an SBP election once made is irrevocable and that a spouse cannot remarry before age 55 in order to retain SBP annuity eligibility.
3. Accordingly, there appears to be no basis to grant the applicant's request.
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) AR20140001622
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ABCMR Record of Proceedings (cont) AR20140001622
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