IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020228 


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" within 1 year of his divorce.

2.  The applicant states he did not know he had to formally elect to keep his former spouse as the beneficiary of his pension.  He assumed since he did not remove her as the primary beneficiary and continued to pay the SBP premiums at the time of their divorce and thereafter, that she would continue to be the beneficiary.  He never received an exit briefing at the time of his retirement as to the SBP or the need to make an election to keep his former spouse as the beneficiary when they were divorced.  He also requests a personal appearance hearing before the Board. 

3.  The applicant provides:

* Marital Property Settlement and Support Agreement
* Judgment of Divorce
* Correspondence from the Defense Finance and Accounting Service (DFAS)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 29 July 1943.  He and Linda were married on 3 December 1994. 

2.  Having had prior service, the applicant was appointed as a Reserve commissioned officer of the Army on 22 May 1973.  He served in a variety of assignments and he attained the rank of lieutenant colonel (LTC). 

3.  On 15 June 1989, the U.S. Army Reserve Personnel Center issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him he was entitled to participate in the Reserve Component SBP (RCSBP) and that by law, he had only 90 calendar days from the date he received this letter to submit his DD Form 1883 (SBP Election Certificate).  There is no indication the applicant made an election within 90 days.  

4.  On 22 June 2011, Headquarters, 99th Regional Support Command, Oakdale, PA issued orders transferring him to the Retired Reserve effective 1 June 2001. 

5.  On 6 August 2002, with his application for retired pay at age 60, he completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was married to Linda and they had two dependent sons born in December 1995 and June 1998 respectively.  He elected "spouse and children" SBP coverage based on the full amount.  

6.  On 19 March 2003, the U.S. Army Reserve Personnel Center published orders placing him on the Retired List in his retired grade of LTC effective 29 July 2003, his 60th birthday. 

7.  On 5 January 2013, he and Linda entered into a Marital Property Settlement and Support Agreement.  This agreement stipulated that the applicant would name his wife as irrevocable survivor beneficiary.  

8.  On 7 January 2013, the applicant and Linda were divorced.  Their Marital Property Settlement and Support Agreement was incorporated into their divorce decree.   

7.  On 13 February 2014, DFAS corresponded with the applicant and advised him that his attempt to deem an SBP election for former spouse could not be processed because it was received more than 1 year after the court order he sent (to DFAS).  Additionally, a court order by itself could not be used to institute coverage.  An election can be deemed on the basis of a court-order or court-approved agreement by the former spouse or the former spouse attorney.  The request must be received along with the DD Form 2656-10 (SBP/RCSBP Request for Deemed Election) within 1 year of the date of the original court order that awarded the coverage. 
8.  On 5 June 2015, the case analyst of record confirmed with DFAS and with the applicant (by phone) that the applicant had not remarried. 

9.  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.

10.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

11.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP; the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

12.  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.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

13.  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 (emphasis added).  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.

14.  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 (emphasis added) of the date of the court order or filing involved.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 
90 calendar days of receipt.  The applicant's records do not indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter. 

2.  The applicant, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  He did elect SBP in 2002 with his application for retired pay at age 60 and chose "spouse and children" coverage.  

3.  He and Linda, his former spouse, signed a marital property Settlement and Support Agreement on 5 January 2013.  It stipulated that he would maintain an SBP annuity for the former spouse.  This agreement was incorporated into their divorce decree on 7 January 2013.  However, even though the applicant  continued to pay the SBP premiums, he did not change his SBP election from "spouse" to "former spouse" and Linda, his former spouse, did not make a deemed election for former spouse coverage within 1 year of the divorce.

4.  The law amended the SBP by giving the former spouse of a retiree an option to request that a former spouse election be deemed to have been made by the retiree.  There are two requirements for a deemed election to be valid.  The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP.  The second is the request for a deemed former spouse election must be received within 1 year of the divorce.  The divorce decree indicates former spouse benefits.  However, the applicant's pay records do not reflect receipt of the former spouse election from him nor did DFAS receive a deemed election request from her within 1 year of the divorce.  Both requirements must be met in order to be the eligible SBP beneficiary.

5.  Because SBP elections are by category, not by name, a spouse loses eligibility as an SBP beneficiary upon divorce.  There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit.  Once the applicant and his former spouse were divorced she was no longer his spouse and no longer an eligible SBP beneficiary. 

6.  Nevertheless, there is no evidence the applicant remarried. Additionally, his pay records show he continues to pay SBP premiums and he attempted to change his coverage by contacting DFAS, albeit without the proper form and outside the 1-year window allowed by law.  Therefore, there is sufficient evidence to show the applicant's intent was to change the SBP coverage from spouse to former spouse. 

7.  As such, as a matter of equity, his records should be corrected to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.  

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 submitted a timely request to change his SBP election from spouse to former spouse and the request was received and processed by the appropriate DFAS 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)                                         AR20140020228



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ABCMR Record of Proceedings (cont)                                         AR20140020228



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