BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140005513 


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 reconsideration of his earlier request for correction of his records to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse coverage.

2.  The applicant states, in effect, that he is divorced and wants his (first) former spouse as beneficiary of his SBP, as required by the final divorce decree.

3.  The applicant provides copies of:

* Final Decree of Divorce, dated 13 February 2006
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), AR20130008085, dated 25 February 2014

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130008085 on 25 February 2014.

2.  The applicant has provided his final divorce decree, dated in 2006, which requires consideration by the Board.



3.  The original ROP shows the Board considered the following evidence:

	a.  A DD Form 1883 (SBP Election Certificate) in which the applicant indicated he was married to Kathy R. on 8 August 1987 and he had three dependent children.  He elected spouse only coverage based on the full amount of retired pay with Reserve Component (RC) SBP Option C (Immediate Coverage).  The form also shows the applicant, his spouse, and a witness placed their signatures on the document on 29 September 1990.

	b.  An Iowa District Court for Polk County, Decree of Dissolution of Marriage, shows that Kathy R. and the applicant were divorced on 21 August 1997.  It shows that Kathy R. shall receive one-third of the applicant's military pension and that the applicant was directed to maintain the provision guaranteeing the former spouse has survivor benefits and will continue to receive her portion of the pension, if the applicant dies before the former spouse.  It also shows the applicant was to fully cooperate in the filing of a Qualified Domestic Relations Order which includes a provision for the survivor benefits for the former spouse.

	c.  A State of Texas, Marriage License and Rites of Matrimony, shows the applicant and Bonnie B. E------ were married on 30 January 1999.
 
	d.  A District Court of Cameron County, Texas, Final Decree of Divorce (pages 1 and 10, only), shows the applicant and Bonnie B. E------ were divorced on 11 February 2002.

	e.  A State of Texas, Marriage License and Rites of Matrimony, shows the applicant and Rosario S------ were married on 28 December 2002.

	f.  In March 2004, he submitted a request to DFAS to change his SBP coverage based on remarriage.  He indicated his current coverage was spouse only and he requested resumption of his existing coverage based on a reduced amount of his retired pay.

	g.  On 10 December 2007, a Nunc Pro Tunc Order (retroactive legal action) was issued by the Iowa District Court for Polk County ordering the applicant to change his SBP to former spouse coverage with his (first) former spouse named as the beneficiary and to maintain such SBP coverage.

	h.  On 22 July 2009, the applicant submitted a request to DFAS electing not to participate in the SBP because he did not have eligible dependents under the plan.  However, there is no evidence of record that shows the applicant divorced Rosario S------.

	i.  On 15 January 2011, the applicant was placed on the retired list based on having reached age 60.  DFAS records show the applicant currently has SBP spouse coverage.  The spouse is currently listed is Rosario H------.

	j.  There is no evidence that the applicant or his (first) former spouse notified DFAS to change the applicant's RCSBP coverage from spouse to former spouse coverage within 1 year of the divorce decree.

	k.  On 30 June 2011, the (first) former spouse's attorney advised DFAS that a copy of both the Decree of Dissolution of Marriage and Nunc Pro Tunc Order were submitted to DFAS in December 2007.

4.  The original Board concluded:

	a.  The divorce decree awarded the RCSBP to the first former spouse and specifically ordered the applicant to timely execute all documents necessary to maintain his first former spouse's designation as a (former spouse) SBP beneficiary.  Unfortunately, it appears the applicant did not take the action directed by the court, nor did the former spouse make a request for a "deemed election" of the SBP, in a timely manner.

	b.  If the applicant provided evidence to show his marriage to Rosario H------- was dissolved, the Board could reconsider the case based on the state of the file as it stands.  If the applicant is still married to Rosario H------- or has another current spouse, the spouse must either voluntarily relinquish her SBP interest by providing a notarized statement to that effect or the matter must be resolved in a court of competent jurisdiction.

5.  The new evidence submitted by the applicant shows he was divorced from his third spouse on 13 February 2006.

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.

7.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age
60.  Three options are available:  (a) elect to decline enrollment and choose at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members.  Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are:

	a.  if the service member voluntarily elects to provide a former spouse annuity;

	b.  the election is made in order to comply with a court order; or

	c.  the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment.

9.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  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 decree of divorce.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  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 of filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he changed his SBP election from spouse to former spouse coverage because he is now divorced and his divorce decree from his first spouse requires him to make her the beneficiary for his SBP.

2.  The available evidence shows the applicant's divorce decree, dated 
21 August 1997, required him to make his first former spouse the beneficiary of his SBP.

3.  Because the applicant was divorced from his third wife in 2006, there are no apparent persons who have a legal claim on his SBP.  Therefore, he is now legally able to elect his first former spouse as the beneficiary of his SBP as is required in the provisions of his final divorce decree.

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 amendment of the ABCMR’s decision in Docket Number AR20130008085, dated 25 February 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he elected to change his spouse SBP coverage to former spouse SBP coverage in September 1997; and

	b.  designated his first wife as the former spouse SBP beneficiary in accordance with his divorce decree, dated in 21 August 1997.



      _______ _  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)                                         AR20140005513



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ABCMR Record of Proceedings (cont)                                         AR20140005513



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