IN THE CASE OF:
BOARD DATE: 18 December 2014
DOCKET NUMBER: AR20140007431
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 former spouse coverage under the Survivor Benefit Plan (SBP) within 12 months of his divorce.
2. He states he understands his election for SBP is one month past the 1-year requirement. However, he was unaware of the deadline, his former wife is entitled to his SBP, and he never had any intentions of denying her that benefit.
3. The applicant provides a DD Form 2656-10 (SBP/Reserve Component (RC))- SBP Request for Deemed Election), a Marital Settlement Agreement, two letters from the Defense Finance and Accounting Service (DFAS) addressed to the applicants former spouse, and two self-authored statements.
CONSIDERATION OF EVIDENCE:
1. On 31 July 2001, the applicant retired from the Regular Army in the rank/grade of major/O-4 after completing 20 years, 1 month, and 19 days of active military service.
2. The applicant provides a Marital Settlement Agreement that shows he and JXXXXX were married on 6 October 1983 and divorced on 30 August 2012. The settlement agreement shows JXXXXX had been named and will continue to remain named as the beneficiary of the applicants SBP.
3. There is no indication the applicant changed his SBP coverage from spouse to former spouse. Additionally, there is no indication his former spouse, JXXXXX, made a timely request for a deemed election.
4. The applicant provides a DD Form 2656-10, dated, 7 October 2013, showing he divorced his former spouse on 30 August 2012 and has not remarried and his former spouse was requesting a deemed election of the SBP.
5. On 5 November 2013, DFAS informed the applicants former spouse that her application to deem the SBP election could not be processed because it was received more than 1 year after the court order she provided.
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.
7. 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.
8. 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.
9. 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.
10. 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 and his spouse, JXXXXX, were divorced on 30 August 2012 and their Marital Settlement Agreement stipulated JXXXXX would remain the designated beneficiary of his SBP. There is no evidence that the applicant or his former spouse submitted the necessary forms to change his SBP election from "spouse" to "former spouse" coverage within 1 year of his divorce.
2. 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 separation agreement. However, he has not remarried and he states he never intended to deny his former spouse his SBP benefits.
3. Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" coverage, and as such only as a matter of equity should his record be corrected to show he did so within 1 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 1 year of his divorce, on 31 August 2012, 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) AR20140007431
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ABCMR Record of Proceedings (cont) AR20140007431
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