IN THE CASE OF:
BOARD DATE: 23 July 2015
DOCKET NUMBER: AR20140017699
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 former wife, Hxxxx, be removed as the beneficiary under the Survivor Benefit Plan (SBP) and that his current wife be added as the sole beneficiary.
2. The applicant states he divorced Hxxxx in July 2012 and married Bxxxxx the same month. He requested the conversion of beneficiaries at that time. Following their divorce, Hxxxx petitioned the U.S. courts and got a portion of his military retirement and Social Security retirement. She has now also been reinstated as the beneficiary under the SBP.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army master sergeant, retired on 31 May 1986 and elected to participate in the SBP.
2. The available records show that the applicant was married to Gxxxxxxxx at the time of his retirement in 1986. He divorced Gxxxxxxxx and married Hxxxx in 1991.
3. The applicant separated from Hxxxx in 2002 and entered into a formal settlement agreement on 24 March 2003. In that agreement the applicant was to pay Hxxxx spousal support in the amount of 1,200 (Euros) a month and maintain her health insurance coverage. The applicant was also to maintain his Serviceman's Group Life Insurance and private insurance naming Hxxxx as the irrevocable beneficiary. Additionally, all military benefits were to remain as they were to include Hxxxx as being shown as the designated SBP beneficiary.
4. On 8 July 2006, the District Court for Forsyth County, NC, entered a judgment against the applicant for failure to pay spousal support as agreed to in the 2003 separation agreement. The court directed that 50 percent of the applicant's military retirement was to be directly disbursed on a monthly basis. The applicant was also directed to provide Hxxxx with documentation that she continued to be shown as the sole beneficiary of his SBP, Serviceman's Group Life Insurance, and private insurance.
5. The applicant divorced Hxxxx on 26 July 2012 and married Bxxxxx the same month.
6. On 31 August 2012, the applicant requested his SBP beneficiary be changed from Hxxxx to Bxxxxx and was advised he had to wait 1 year to add Bxxxxx as his beneficiary. Bxxxxx was added as the SBP beneficiary in 2013.
7. On 23 July 2013, an attorney for Hxxxx petitioned the Defense Finance and Accounting Service (DFAS) to show Hxxxx as the sole beneficiary of the applicant's SBP in accordance with the separation agreement and requested a deemed election be shown to have been made. The date of receipt of this letter is shown as 29 July 2013.
8. Initially, the request was denied as the application for a deemed election was not received within 1 year of the original court action.
9. Hxxxx's attorney contended that the actual final date of the divorce action was not 26 July 2012 but 18 September 2012 and as such the request was filed in a timely manner. If DFAS held to the 26 July 2012 divorce date, it was contended that the application was mailed in a timely manner though not signed for until 6 days later.
10. It appears that DFAS eventually agreed with Hxxxx's counsel and approved the deemed election, notifying the applicant, at some point in 2014, that his SBP beneficiary had been changed back to Hxxxx.
11. 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. In their 2003 separation agreement, the applicant agreed to give Hxxxx what amounted to 50 percent of his retirement and he was to maintain her life, health, and dental insurance. In addition to these items he also agreed to give her an irrevocable beneficiary entitlement to SBP. The applicant entered in to the agreement voluntarily and declined to seek guidance from a legal assistance attorney.
2. The divorce spousal support agreement was included and affirmed in the 2006 Forsyth County court decision relating to the applicant's failure to pay proper spousal support. This court decision specifically addressed the SBP issue as an irrevocable beneficiary entitlement.
3. Hxxxx, through her lawyer, submitted a valid request for a deemed election within 1 year of the 2012 finalization of the divorce.
4. The applicant is bound by the separation agreement and the court decision to show Hxxxx as his SBP beneficiary. This Board cannot facilitate his attempts to avoid the court-ordered obligation.
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) AR20140017699
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ABCMR Record of Proceedings (cont) AR20140017699
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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