IN THE CASE OF:
BOARD DATE: 18 December 2014
DOCKET NUMBER: AR20140004574
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 Survivor Benefit Plan (SBP) former spouse coverage.
2. The applicant states:
* he was divorced on 21 February 2012
* the months prior to and after his divorce were filled with completing forms, meeting timelines, and dividing assets
* he believes he completed the DD Form 2656 (Data for Payment of Retired Personnel), but he cannot be 100-percent certain
* he thought everything was in order as the deductions continued
* he did not discover he was paying spouse-only coverage instead of former spouse coverage until he was approved for Combat-Related Special Compensation
3. The applicant provides:
* self-authored statements
* divorce decree
* marriage certificate
* DD Form 1883 (SBP Election Certificate)
* retirement orders
* DD Form 108 (Application for Retired Pay Benefits)
* Direct Deposit Sign-up Form
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Chronological Statement of Retirement Points
* Integrated Web Services (IWS) screenshot
* DD Form 2656
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 5 March 1947. He was married on 16 April 1972 to M____ K____M____.
2. After having prior periods of honorable service in the Regular Army and U.S. Army Reserve (USAR) and a break in service, the applicant enlisted in the USAR on 18 January 1976.
3. On 23 August 1994, he received his 20-Year Letter notifying him of his eligibility for retired pay at age 60.
4. On 11 May 1995, he completed a DD Form 1883 and elected Option C (immediate coverage) under the Reserve Component SBP (RCSBP) for spouse and children.
5. On 3 May 2006, he completed a DD Form 2656. His DD Form 2656 shows he referenced his DD Form 1883 and shows his dependent son was no longer an eligible dependent.
6. On 5 March 2007, the applicant retired.
7. On 21 February 2012, the applicant and M____ K____ M____ were divorced. Their divorce decree shows he was ordered to not remove his former spouse's SBP coverage.
8. Coordination with the Defense Finance and Accounting Service (DFAS) shows the current SBP beneficiary as M____ K____ M____ and premiums have been paid to date.
9. There is no indication that either the applicant or his former spouse notified DFAS of their divorce within 1 year or that either submitted a change to his SBP coverage from "spouse" to "former spouse" coverage within 1 year of their divorce. Additionally, he provided a statement indicating he has not remarried.
10. Public Law 92-425, the SBP, enacted 21 September 1972, 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. Elections are made by category, not by name.
11. The Uniformed Services Former Spouses Protection Act (USFSPA) established SBP coverage for former spouses of retiring members.
12. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members.
13. 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.
14. 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. SBP elections are made by category, not by name. As long as M____ K____ M____ was his spouse, she was the SBP beneficiary. Once they divorced, she was no longer a beneficiary.
2. There is no evidence and the applicant failed to provide evidence showing he requested his SBP coverage be changed to former spouse coverage. There is also no evidence his former spouse submitted a request for a deemed election of former spouse coverage within the 1 year of her divorce.
3. However, since premiums have been paid to date and he has not remarried, it would be appropriate to correct the record to show he made an election within 1 year of his divorce selecting former spouse coverage.
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 to show the applicant made an election on 22 February 2012 selecting former spouse SBP coverage and DFAS received, accepted, and process his election 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) AR20140004574
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140004574
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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