IN THE CASE OF:	 

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020765 


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 his former spouse be removed from the Survivor 
Benefit Plan (SBP). 

2.  The applicant states upon his divorce, in order to remove his former spouse, 
he completed a DD Form 2656-1 (SBP Election Statement for Former Spouse 
Coverage) in error.  It has come to his attention that he should have completed a 
DD Form 2656-6 (SBP Election Change Certificate).  He sent a letter to the 
Defense Finance and Accounting Service (DFAS), but he was denied based on 
completion of the DD Form 2656-1.  According to his divorce decree, his former 
spouse does not have any right to the SBP. 

3.  The applicant provides his divorce decree, DD Form 2656-1, and a letter from 
DFAS.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 4 March 1962. 

2.  Having had prior enlisted service, the applicant was appointed as a Reserve 
warrant officer of the Army and executed an oath of office on 31 March 1988.  He 
transferred to the Minnesota Army National Guard (MNARNG) on 28 May 1995. 

3.  He served in a variety of aviation assignments with multiple periods of 
mobilization and he was promoted to chief warrant officer five (CW5). 

4.  On 6 May 2002, the MNARNG issued him a Notification of Eligibility for 
Retired Pay at Age 60 (20-Year Letter). 

5.  On 30 July 2002, he completed a DD Form 1883 (SBP Election Certificate). 
He stated that he was not married but had dependent children, Tiffany (was born 
in November 1982), Travis (was born in January 1985), and Jennifer (was born in 
August 1988).  He elected "children" only SBP under Option C (immediate 
coverage) based on the full amount. 

6.  On 30 December 2003, the applicant married Debra. 

7.  On 27 August 2012, in connection with his upcoming retirement, the applicant 
completed a DD Form 2656 (Data for Payment of Retired Personnel).  He 
indicated he was married to Debra and they had no dependent children.  He 
elected spouse coverage based on the full amount.  

8.  The applicant retired from active duty on 30 September 2012 by reason of 
having sufficient service for retirement.  He was placed on the Retired List in his 
retired rank of CW5 on 1 October 2012. 

9. On 21 December 2012, the MNARNG published Orders 356-1001 transferring 
him to the Retired Reserve effective 1 October 2012. 

10.  On 7 May 2014, the applicant and Debra were divorced.  Their divorce 
decree did not obligate him to change his SBP election from spouse to former 
spouse. 

11.  On 26 June 2014, the applicant completed a DD Form 2656-1.  He 
requested former spouse SBP coverage and indicated that this was made 
pursuant to the requirements of a court order.  He and a witness completed this 
form and authenticated it with their signatures.  He forwarded this election, 
together with his divorce decree to DFAS. 

12.  It appears after DFAS received his election and divorce decree, he 
communicated with DFAS to change this former spouse election.  He submitted a 
DD Form 2656-6.  He stated that his current coverage was "spouse only" and he 
was requesting suspended coverage due to a divorce.  He signed this form and 
his signature was notarized. 

13.  On 19 November 2014, DFAS responded with a letter indicating they were 
unable to process his request.  The laws governing the SBP do not permit a 
suspension or a change to the former spouse coverage absent a qualifying event 
such as marriage. 
14.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The 
SBP provided that military members on active duty could elect to have their 
retired pay reduced to provide for an annuity after death to surviving dependents. 
An election, once made, was irrevocable except in certain circumstances

15.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act 
(USFSPA), dated 8 September 1982, established SBP for former military 
spouses.

16.  Public Law 98-94, dated 24 September 1983, established SBP for former 
military spouses of retired members and reservists.

17.  Title 10, U.S. Code, section 1448 states in:

	a.  Sub-paragraph (b)(3)(A)(i) that a person who is a participant in the Plan 
and is providing coverage for a spouse or a spouse and child (even though there 
is no beneficiary currently eligible for such coverage), and who has a former 
spouse who was not that person’s former spouse when that person became 
eligible to participate in the Plan, may elect to provide an annuity to that former 
spouse.  

	b.  Sub-paragraph (b)(3)(A)(ii) states that any such election terminates any 
previous coverage under the Plan.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates at the time of his retirement in 2012, the 
applicant was married to Debra.  He elected spouse SBP coverage based on the 
full amount.  

2.  The available evidence also shows he and Debra were divorced in May 2014. 
The divorce decree he provides does not obligate him to change his SBP 
election to "former spouse" SBP coverage.  A change in the SBP to former 
spouse beneficiary would have been a strictly voluntary action on the part of the 
applicant, which the evidence of record shows he did make, albeit he indicated 
that this change was the result of a court order. 

3.  It is clear that he accidentally sent the wrong form.  The orders could not have 
been more specific that the former spouse was not supposed to get the SBP.  He 
just made an innocent mistake.  When he recognized his mistake, he 
communicated with DFAS and sent the right form to suspend coverage rather 
than change it to former spouse coverage.  However, DFAS rejected his request. 
 The Board should correct his records.  
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 DFAS did not accept the DD Form 2656-1 and timely accepted the 
DD Form 2656-6, dated 24 October 2014. 



      ___________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)                                         AR20140020765



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ABCMR Record of Proceedings (cont)                                         AR20140020765


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