BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150002108 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, in effect, correction of his records to show he changed his survivor benefit plan (SBP) coverage from "spouse" to "former spouse and children" within 1 year following the date of his divorce. 2. The applicant states: a. He retired after 20 years active federal service on 30 September 2000. He was subsequently called back to active duty under the Retiree Recall Program from 18 September 2011 to 17 March 2014. He retired a second time on 17 March 2014. b. He divorced on 11 January 2013. After his first retirement he elected full SPB coverage for his spouse. He also had full intention of granting her full SBP coverage as his former spouse; however, both she and her lawyer and the applicant failed to submit a deemed election within 1 year from the date of divorce. 3. The applicant provides: * Division of Accounts * Memorandum for Record * 2 Letters * DD Form 2656 (Data for Payment of Retired Personnel) * DD Form 2656-10 (SBP/Reserve Component (RC) SBP Request for Deemed Election * Journal Entry of Judgment and Decree of Absolute Divorce * Separation, Property Settlement, Child Custody Agreement and Parenting Plan CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born on 3 January 1958. He married his former spouse K____ on 9 October 1988. 2. The record shows he appointed an officer of the Army of the United States on 16 May 1980. He served in a variety of assignments and he attained the rank/grade of lieutenant colonel/O-5. 3. On 28 September 2000, the applicant completed a DD Form 2656 in which he elected full SBP coverage for "spouse and children." 4. On 30 September 2000, the applicant retired honorably due to having sufficient service for retirement. 5. On 18 September 2000, the applicant was recalled to active duty from retired status. 6. On 11 January 2013, the applicant and his spouse divorced. In the divorce decree the applicant was required to provide "former spouse only" SBP coverage for his former spouse. However, neither requested a deemed election within 1 year and he never made the change to correct his SBP coverage from "spouse and children" to "former spouse only." Therefore, he remained in the SBP under "spouse and children" category of coverage. 7. On 17 March 2014, the applicant was honorably released from active duty upon the completion of his required active service. 8. On 7 June 2014, the applicant's former spouse was informed by the Defense Finance and Accounting Service (DFAS) that her attempt to deem an election of SBP former spouse coverage could not be processed because her application to deem the election was received more than 1 year after the court order. 9. On 29 January 2015, the applicant applied to the DFAS to make a deemed election; however, his attempt to deem an election of SBP former spouse coverage could not be processed because his application to deem the election was received more than 1 year after the court order. 10. The applicant provided various documents showing that his former spouse should have been deemed as the former spouse for SBP coverage pursuant to their divorce decree and that DFAS denied the former spouse's claim as the valid annuitant. 11. On 15 October 2015, the applicant was contacted by a staff member as to whether or not the applicant had remarried. The applicant stated he had not remarried. 12. 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. 13. 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. 14. 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 retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 15. 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. 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. 16. 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. On 11 January 2013, the applicant and his spouse divorced. Although their divorce decree stipulated that he would maintain an SBP annuity for the now former spouse, neither the former spouse nor the applicant notified DFAS of their divorce or provided a written request to change the election from "spouse and children" to "former spouse" within 1 year. 2. A former spouse may request a deemed SBP election. 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 that the request for a deemed former spouse election must be received within 1 year of the divorce. 3. For example, when the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within 1 year of the divorce. A divorce decree alone does not constitute a deemed election. 4. 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. 5. The applicant states he has not remarried. Therefore, there is no spouse with a vested interest. Additionally, his pay records show he continues to pay SBP premiums and he attempted to change his coverage by contacting DFAS, albeit 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. 6. As such, as a matter of equity, it would be appropriate to correct his records to show he did so in a timely manner and that his request was received and processed by DFAS in a timely manner. 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 that on 12 January 2013, the applicant submitted a 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) AR20150002108 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002108 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1