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ARMY | BCMR | CY2014 | 20140013476
Original file (20140013476.txt) Auto-classification: Approved

		IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140013476 


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, in effect, the following:

* correction of his records to show he requested a change to his Survivor Benefits Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce
* reinstatement of the SBP premiums

2.  The applicant states:

   a.  He was divorced from his former spouse, Sherrelle, on 1 December 2010. They had been married for 48 years and over 20 years was while he served on active duty.  A Final Order and Decree stated that she was to continue to be eligible for SBP.  Those documents were provided to the Defense Finance and Accounting Service (DFAS) shortly thereafter.  However, he was never notified by DFAS that he had to complete a DD Form 2656-10 (SBP/Reserve Component Request for Deemed Election) or that Sherrelle had to complete a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage).  He had always deemed Sherrelle to be eligible to receive his SBP benefits and he would have the premiums deducted from his retired pay.

   b.  He continued to pay for SBP until it was stopped by DFAS in October 2013.  He is providing copies of all documents relating to this matter as he had previously submitted a DD Form 149 (Application for Correction of Military Record) earlier, but he did not provide sufficient documentation and he received a letter from the Chief, Case Management Division, Army Review Boards Agency (ARBA).  The letter indicated what he needed to do.

3.  The applicant provides copies of the following:

* marriage license
* Final Order and Decree
* three DFAS-CLs 7220/148 (Retiree Account Statement)
* letter from DFAS
* his letter
* two letters from and to the ARBA

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on X January 1940.  He and Sherrelle were married on 9 February 1962.

2.  He enlisted in the Mississippi Army National Guard (MSARNG) on 9 April 1963 for 6 years.  He was ordered to and entered active duty on 12 August 1963. He was released from active duty on 12 February 1964 and was returned to control of the MSARNG.

3.  He again entered on active duty on 1 October 1974.  He was retired on 1 December 1993.  It is unclear what SBP election he made at the time.

4.  He provided copies of the following:

   a.  A Final Order and Decree which shows he and Sherrelle were divorced on 1 December 2010.  The order stipulated she was designated as the applicant's SBP beneficiary and she was responsible for the payment of any and all premiums and other costs and/or expenses associated with the continuation of her beneficiary designation by reimbursing him the monthly premiums via direct deposit.

   b.  A letter, dated 28 January 2011, wherein the DFAS advised him of the following:

		(1)  They had received an application from his former spouse, Sherrelle, for payment of a portion of his retired/retained pay based upon the enclosed documentation.  Under the Uniform Services Former Spouses' Protection Act (USFSPA) (Title 10, U.S. Code (USC), section 1408) they were the designated agency of such claims.

		(2)  If the enclosed court order had been amended, superseded, or set aside, it was his responsibility to notify them within 30 days of that fact and to provide court-certified copies of the pertinent documentation.  Submission of such documentation constituted consent to the disclosure of such information to the former spouse or the former spouse's attorney.  Unless they received such notice within 30 days, they would honor his former spouse's application.

		(3)  In accordance with the court order, direct payment to his former spouse should tentatively commence March 2011, with the first payment issued on the first of April 2011.  Such payments could not exceed 50 percent of a member's disposable retired/retained pay.

   c.  A DFAS-CL 7220/148, dated 23 October 2013, which shows former spouse SBP premiums were deducted from his retired pay.  The form notified the applicant that since he had already reached age 70, once he had paid 360 months towards his coverage, his costs would be terminated, but coverage would remain active.

   d.  A DFAS-CL 7220/148, dated 19 November 2013, which shows no SBP election was reflected on his account.  Sherrelle was listed as his former spouse for arrears of pay.

   e.  A letter, dated 19 December 2013, wherein DFAS advised him of the following:

		(1)  They received the copy of his divorce decree requesting that his current (second) spouse be removed from SBP coverage due to divorce.

		(2)  Reading over his documentation, they found that he was previously married to and subsequently divorced from Sherrelle.  However, they had not received the notification of his divorce from her until recently.  The original copy of the divorce decree was routed to the Legal Department (whose files were blocked from other departments).

		(3)  When he sent in the divorce decree from his current spouse, Sally, the question raised was when he and she were married, and how did his previous marriage to the person they currently showed (as his current souse SBP beneficiary) end?  That was the reason for the request that he submit a copy of his marriage certificate to his current (ex-) spouse, Sally.  They needed to keep the records updated and current.  That was the reason they needed a copy of his marriage certificate.

		(4)  However, it was noted his divorce decree stated that he and Sally were married on 16 November 2012 and his date of divorce from her was 5 August 2013.  That meant that Sally was never eligible for coverage under the SBP, because her coverage would have started on his 1-year anniversary and he was divorced before them.

		(5)  There was actually no change to make to the SBP and no further action was necessary.  

   f.  A letter, dated 23 May 2014, wherein he stated that he had spoken with a staff member at the Finance Center on 23 May 2014 around 1350 hours.

   g.  A letter, dated 18 June 2014, wherein ARBA advised him that he had not provided sufficient evidence to support his request.  In order for his application to be considered, he must provide the following:  Marriage Certificate, Divorce Decree, DD Form 2656 (SBP Election Form), and documents from the DFAS.

   h.  A DFAS-CL 7220/148, dated 23 July 2014, which shows no SBP election was reflected on his account.  Sherrelle was listed as his former spouse.

   i.  A letter, dated 24 July 2014, he submitted in response to the ARBA letter and provided the requested documentation.  He stated:

		(1)  To the best of his knowledge, he believed that everything outlined in the divorce decree was in order and Sherrelle would be entitled to the SBP.  Payment from SBP was withdrawn from his retirement pay each month and Sherrelle reimbursed him each month according to their legal agreement.

		(2)  In May 2014, he noticed that SBP was not being taken out of his retired pay (he did not review his retirement statements often since basically there was no change) and he went on-line to review his My Pay Account.  It was then that he discovered the last SBP payment was taken out in November 2013.

		(3)  He had spoken with the DFAS and was alerted to the fact that SBP had been stopped and there was no DD Forms 2656-1 or 2656-10 in his file to specify that he "deemed" his ex-spouse to receive his SBP.  That was the first time that he was aware that his ex-spouse or himself needed to have completed either forms.

6.  The DD Form 2656 Instruction states in Section IX – Mark Item 26e (I Elect Coverage For My Former Spouse) if you desire coverage for a former spouse; the DD Form 2656-1 must also be completed and accompany the completed DD Form 2656 to DFAS-Cleveland.
7.  On 12 and 17 March 2015, a staff member of the DFAS SBP section verified that the applicant's account currently reflected no SBP beneficiary since 1 December 2010.  The DFAS official was not sure where the notation of "payments stopping in November 2013 due to being paid up" came from.  Payments would have stopped in December 2010 when the applicant went to no beneficiary.  At that point, he had paid 239 months.

8.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:

* the 360th month for which the participant’s retired pay is reduced; and 
* the month during which the participant attains age 70.

9.  Title 10, USC, section 14802(c) incorporates the provisions of the USFSPA relating to the retired pay.  It provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member. 

10.  Title 10, USC, 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 applicant and his first spouse, Sherrelle, were divorced on 1 December 2010.  There is no evidence of record that either he or Sherrelle took the necessary action to change his SBP election from spouse to former spouse coverage within 1 year of their divorce.

2.  He married his second spouse, Sally, on 16 November 2012 and they were divorced on 5 August 2013.  In December 2013, DFAS advised him that Sally was never eligible for SBP coverage because they were divorced before their    1-year anniversary of marriage.

3.  In view of the continued deduction of his SBP premiums since 1993, his desire to provide SBP for his former spouse, and the fact that there is no current spouse with a vested interest, it would be appropriate as a matter of equity to correct the applicant's records to show he requested to change his SBP election from spouse to former spouse within 1 year of his divorce.
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 the applicant changed his SBP election from "spouse" to "former spouse" coverage within 1 year of their divorce on 1 December 2010 and his request was timely received and processed by the appropriate DFAS office.



      __________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)                                         AR20140013476





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ABCMR Record of Proceedings (cont)                                         AR20140013476



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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