IN THE CASE OF:
BOARD DATE: 24 March 2015
DOCKET NUMBER: AR20140011908
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 changed his Survivor Benefit Plan (SBP) coverage from spouse to former spouse coverage within 1 year of their divorce.
2. He states:
* he did not realize that his current spouse was listed as the SBP beneficiary
* his former spouse should be the beneficiary as stated in their decree of dissolution
3. The applicant provides:
* Decree of Dissolution
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders
* SBP information sheet
* DD Form 2656 (Data for Payment of Retired Personnel)
CONSIDERATION OF EVIDENCE:
1. On 30 September 1997, the applicant retired from the Regular Army in the rank/grade of sergeant first class/E-7 after completing 23 years and 23 days of active military service.
2. He provides a DD Form 2656, dated 11 September 1997, which shows he elected SBP coverage for spouse and children based on a reduced base amount.
3. He provides a Decree of Dissolution that shows he and S___ were divorced on 11 March 2002. The Decree of Dissolution shows S____ will be permanently named as the beneficiary of his SBP.
4. There is no indication that he changed his SBP coverage from "spouse" to "former spouse." Additionally, there is no indication his former spouse made a timely request for a deemed election.
5. He married C______ on 26 March 2003. A SBP information sheet shows he is enrolled in the SBP and the current beneficiary is C______.
6. 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.
7. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of 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.
DISCUSSION AND CONCLUSIONS:
1. On 11 September 1997, the applicant completed a DD Form 2656 and elected SBP coverage for spouse and children based on a reduced base amount. Years later, he and the former spouse divorced.
2. He did not make a former spouse election and the former spouse did not make a deemed election within 1 year of their divorce.
3. He is now remarried. Since SBP elections are made by category, not by name, once the applicant and the former spouse were divorced, she was no longer his spouse and no longer the eligible SBP beneficiary. Therefore, in the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, i.e., his spouse/widow if they have been married for at least 1 year, not his former spouse.
4. The ABCMR may not correct his records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current wife of a property interest without due process of law.
5. The ABCMR would accept a request for reconsideration if accompanied by a signed, notarized declaration from this current wife voluntarily relinquishing any interest in the SBP annuity or a judgment from a court of competent jurisdiction decreeing the former spouse has a superior right to the SBP annuity.
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) AR20140011908
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ABCMR Record of Proceedings (cont) AR20140011908
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