IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140014939 


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 that his record be corrected to list his former spouse as his Survivor Benefit Plan (SBP) beneficiary as directed in a Military Qualifying Court Order.

2.  He states he first noticed that his former spouse was not listed as the beneficiary for his SBP in 2001 and upon inquiring to the Defense Finance and Accounting Service (DFAS) he was told not to worry because SBP premiums were being deducted from his retiree pay account; therefore, DFAS must have the court order.

3.  He provides:

* Marriage Certificate
* Divorce Decree (Draft Copy Only)
* Military Qualifying Court Order
* Retiree Account Statement
* DD Form 2656-1(SBP Election Statement for Former Spouse)
* Concurrence Statement from his former spouse

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 3 August 2001 the applicant retired from the U.S. Army Reserve (USAR) in the rank/grade of chief warrant officer two (CW2)/W-2.

3.  The record shows the applicant and former spouse were married on 
24 November 1977.

4.  On 13 January 1993, a DD Form 1883 (Reserve Component SBP Election Certificate) was completed by the applicant.  He elected immediate RCSBP for "Spouse Only" coverage, naming his now former spouse as the beneficiary.

5.  On 10 December 1999, the applicant and his now former spouse were divorced.

6.  In March 2000, the applicant completed a DD Form 2293 (Applicant for Former Spouse Payments from Retired Pay) wherein he requested his former spouse receive 31 percent of his disposable retired pay per month.  The former spouse signed the document on 27 March 2000.  He provides a fax cover sheet indicating the documents were faxed to DFAS on 5 September 2001.

7.  On 11 April 2000, the 378th Judicial District Court of Ellis County, TX, issued a Military Qualifying Court Order.  Paragraph 7 states the applicant's former spouse shall be the irrevocable beneficiary of the applicant's SBP annuity.  Further, the applicant would make the necessary election in a timely manner to effect the coverage and execute such paperwork as required.

8.  He retired on 3 August 2001.

9.  An email from DFAS, dated 15 September 2014, confirms there is no 
DD Form 2656 on file and there is no beneficiary information in the system.  As such, his SBP coverage was defaulted to spouse-only coverage. 

10.  The applicant provides:

* a letter, dated 30 June 2014, from his former spouse acknowledging she understood the cancellation of his SBP would not be in her best interest (the analyst notes that this letter appears address her current lack of SBP coverage)
* DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 22 July 2014, wherein he elected former spouse SBP and indicated he was not currently married
* Retiree Account Statement, effective 22 April 2015, which shows he is paying SBP premiums for "Spouse Only" coverage

11.  In connection with this case a staff member of the Board contacted the applicant to determine if he had remarried.  The applicant stated he had not remarried.

12.  Public Law-661, dated 14 November 1986, permitted divorce courts to order SBP coverage 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.

13.  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.  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 one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his former spouse should be the beneficiary for his SBP as the "Former Spouse" as directed in the Military Qualifying Court Order was carefully considered and found to have merit.

2.  A Military Qualifying Court Order decree ordered the applicant to pay SBP premiums for his former spouse.

3.  The evidence of record clearly shows it was always the intent of the applicant to cover his former spouse under his SBP election as directed by the court order as evidenced by the Retiree Account Statements he provided which show he continually paid the SBP premiums.  Further, he has not remarried so no one has a vested interest superior to that of his former spouse.



4.  As a result, it would be appropriate to correct his record to show that on 
11 April 2000 he properly submitted a request to change his RCSBP election from "Spouse" to “Former Spouse” coverage.  All premiums due as a result of this change should be collected accordingly.

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:

   a.  showing the applicant timely notified DFAS of his divorce and change of his Survivor Benefit Plan election from “Spouse Only” to “Former Spouse” coverage, effective 11 April 2000, and

   b.  showing DFAS timely received and processed his change of RCSBP election.



      ____________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)                                         AR20140014939





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ABCMR Record of Proceedings (cont)                                         AR20140014939



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