IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150001388 


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 Survivor Benefit Plan (SBP) election be changed from “Former Spouse” to his original election of “Spouse and Child.”

2.  The applicant states, in effect, that at the time of his divorce, the judge attorney nor he understood the legalities associated with a “former spouse” election in that once made, it could not be changed.  He goes on to state that his former spouse has passed away and he desires to have his SBP election changed so that his spouse and child may be named as beneficiaries. 

3.  The applicant provides three pages of his divorce decree, the death certificate of his former spouse, his marriage certificate to his current spouse, birth certificates of his current spouse and last child, and his SBP Election Change Certificate.

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.  The applicant was serving on active duty in the rank of chief warrant officer two (CW2) when he made his original SBP election of spouse and child on 
13 January 1992.  He was retired in the rank of CW3 effective 1 February 1992.

3.  He was granted a divorce on 19 January 1999 in Tennessee and the divorce decree directed that his former spouse be deemed the beneficiary of his SBP.  Accordingly, his SBP was changed to “Former spouse.”

4.  The applicant remarried on 18 June 1999 and his child by that marriage was born on 19 November 2001.

5.  On 15 October 2013, his former spouse passed away at the age of 58.

6.  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.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

7.  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.  

8.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

9.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

10.  Title 10, U. S. Code, section 1450(f)(2) states a person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to provide former spouse SBP coverage, or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election unless of the following requirements, whichever are applicable in a particular case are satisfied:

	(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person:

		(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and 

		(ii) certifies to the Secretary concerned that the court order is valid and in effect; or

	(B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person:

		(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse’s agreement to a change in the election; and

		(ii) certifies to the Secretary concerned that the statement is current and in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his SBP election should be reverted back to his original election because his former spouse has passed away and is no longer an eligible beneficiary has been noted and appears to lack merit. 

2.  The laws regarding a former spouse SBP election provide, in effect, that once a “former spouse” election has been made, it made not be changed unless the former spouse agrees in writing to such a change.

3.  Once the former spouse SBP election is made, it essentially become the property of the former spouse and unless the former spouse agrees to relinquish her rights to the SBP or a court order takes it away from her during her lifetime, it does not come back into play for new beneficiaries at her death.

4.  Therefore, since his former spouse did not relinquish her property rights to the SBP prior to death, there appears to be no basis for granting his request.




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)                                         AR20150001388



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ABCMR Record of Proceedings (cont)                                         AR20150001388



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