RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2007 DOCKET NUMBER: AR20070000096 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Michael J. Fowler Analyst The following members, a quorum, were present: Ms. Jeanette R. McCants Chairperson Mr. Thomas H. Ray Member Mr. Jeffrey C. Redmann Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his records be corrected to show he has former spouse Survivor Benefit Plan (SBP) coverage. 2. The applicant states, in effect, that he was required to name his former spouse as his SBP beneficiary by the court. He erroneously named his current wife as beneficiary and inadvertently defied a court order. 3. The applicant provides a letter from his former spouse's attorney, dated 12 December 2006; a 2-page Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida, Mediation Agreement, dated 15 July 2004; a 2-page Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida, Final Judgment of Dissolution of Marriage, dated 27 July 2004; his spouse's concurrence letter, dated 11 July 2007; and a State of Florida Marriage Record, dated 14 August 2004. CONSIDERATION OF EVIDENCE: 1. The applicant had prior service in the United States Naval Reserve and enlisted in the United States Army on 20 January 1966. He married on 6 January 1968. 2. On 9 September 1987, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he elected spouse and children SBP coverage, full base amount. 3. The applicant retired on 31 October 1987. 4. On 24 July 2004, he divorced. The divorce decree stated in pertinent part that the applicant's retirement pay would be split 50/50 and that the SBP provision of his retirement would be made payable to his former spouse. The decree also noted the children were no longer minors. 5. On 14 August 2004, the applicant remarried. 6. There is no evidence that shows the applicant submitted a written request, or that the former spouse submitted a written request for a deemed election, to the Defense Finance and Accounting Service (DFAS) to change the SBP coverage from spouse to former spouse coverage within one year of the divorce. 7. On 11 July 2007, the applicant's current spouse irrevocably waived her right to the SBP with no qualifications. 8. 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. 9. 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. 10. Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members. 11. 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 one year after the date of the decree of divorce. 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. DISCUSSION AND CONCLUSIONS: It appears neither the applicant nor the former spouse requested that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one year time limit. However, his current spouse has provided her concurrence with his request to change his SBP election to former spouse coverage. It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner. BOARD VOTE: __JRM __ ___THR _ ___JC __ 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 showing that, on 1 August 2004, he made a written request to change his SBP coverage to former spouse coverage and his request was received and processed by the appropriate officials in a timely manner. ____ Jeanette R. McCants __ CHAIRPERSON INDEX CASE ID AR20070000096 SUFFIX RECON DATE BOARDED 31 JULY 2007 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY MR. SHATZER ISSUES 1. 137.0200.0000 2. 3. 4. 5. 6.