IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150008718 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150008718 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * amending his DD Form 2656, signed on 30 October 2014, to show he elected former spouse coverage * correcting his DD Form 2656-1 by changing the date it was signed from 31 December 2014 to 30 October 2014 * showing DFAS received, accepted, and processed the DD Form 2656 and 2656-1 in a timely manner 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to establishing the start-date for the payment of premiums as the date of the Board's decision ____________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. Enclosure 1 IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150008718 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 records to show he elected former spouse Survivor Benefit Plan (SBP) coverage on his DD Form 2656 (Data for Payment of Retired Personnel). He additionally requests that the start-date for charging SBP premiums date from the Board's favorable decision. 2. The applicant states, in effect: * when he and his former spouse divorced, they were unaware they had used the wrong wording in the divorce decree ("survivorship benefits versus "survivor benefits plan") * he believed SBP was addressed in their 11 February 2004 Separation Agreement and finalized dissolution dated 1 October 2008 * on 17 September 2006, his former spouse's attorney sent the Defense Finance and Accounting Service (DFAS) a memorandum and DD Form 2293 (Application for Former Spouse Payments from Retired Pay) * believing his former spouse was covered, he opted for no SBP coverage * he did not have the opportunity to be counseled by a Retirement Services Officer (RSO) while deployed in Iraq; had he received this counseling, he would not have made the wrong election * in early November 2014, he was told by the RSO he needed to amend his Divorce Decree to show the correct wording ("survivor benefits plan") * he spent $900 getting his Divorce Decree corrected; the RSO had his former spouse complete a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) on 31 December 2014 * in April 2015, the RSO informed him DFAS was not acting on his request, and that he would need to apply to the Board 3. The applicant provides: * Decree of Dissolution of Marriage, filed 18 April 1988 * Separation Agreement, effective 15 October 2002 * Decree of Legal Separation, filed 11 February 2004 * letter, date 17 September 2006 * first page of a DD Form 2293, undated * Order on Motion to Convert Decree of Legal Separation to Decree of Dissolution and Clarifying Division of Military Retirement, filed 16 October 2008 * Orders 225-1150, dated 13 August 2009 * Orders 240-509, date 28 August 2014 * Orders 240-510, dated 28 August 2014 * DD Form 2656, signed 30 October 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 August 2009 * Amended Order on Motion to Convert Decree of Legal Separation to Decree of Dissolution and Clarifying Division of Military Retirement Nunc Pro Tunc (a ruling which applies retroactively to correct an earlier ruling) * DD Form 2656-1, signed 31 December 2014 * DD Form 2656-10, signed 11 February 2015 * Letter from DFAS, dated 26 February 2015 * miscellaneous transmittal documents * SBP Note 14-08, dated 2 September 2014, Topic: Changing SBP to Spouse at Death of Former Spouse Beneficiary * notarized statement, dated 9 March 2016 * DD Form 1172-2 (Application for Identification Card/ (DEERS) Enrollment, undated CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born on 15 October 1954. He turned 60 years of age on 15 October 2014. 2. After having had prior commissioned service in the U.S. Army Reserve, he was appointed as a chief warrant officer two (CW2) in the District of Columbia Army National Guard, and executed his National Guard Bureau (NGB) Form 337 (Oaths of Office) on 24 November 1993. 3. He married Mylene on 23 May 1986 and they divorced on 18 April 1988. With regard to military pension, the divorce decree stated Mylene waived any and all interest in her husband's contingent military retirement pension. 4. They remarried on 1 September 1988 and then separated for a second time on 11 February 2004. The separation agreement contained language stating the applicant was required to elect the "survivorship benefits" for his spouse. 5. Based on the legal separation, Mylene's attorney sent a letter to DFAS, dated 17 September 2006, with a DD Form 2293 attached, requesting 41 percent of the applicant's disposable retired pay per month. The letter is void of any mention of SBP. 6. Their divorce was finalized a second time on 16 October 2008. The court's action converted the separation agreement into a divorce decree and, with regard to SBP, essentially affirmed the language used in the separation agreement. 7. On 30 October 2014, he completed a DD Form 2656, wherein he indicated he was single and elected not to participate in SBP based on not having any eligible dependents under the plan. 8. He was honorably retired on 31 October 2014. 9. On 16 December 2014, the divorce decree was amended to state the applicant was required and ordered to elect former spouse SBP. 10. The applicant provides a notarized statement wherein he affirmed he is not now, nor has he been, married since his divorce in 2008. He also includes a DD Form 1172-2 which essentially confirms his notarized statement. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, 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. Elections are made by category, not by name. 2. 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. 3. 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. DISCUSSION: 1. The applicant and his former spouse were divorced on 16 October 2008. While the language in the divorce decree did not explicitly state his former spouse was entitled to receive SBP, it is evident this was the intent. 2. At his retirement, the applicant had an opportunity to initiate SBP coverage, but states he failed to do so, believing the matter had been addressed during his divorce. He subsequently realized his former spouse was not covered, and initiated action to correct the language in the divorce decree. The wording was modified on 16 December 2014 to properly show his former spouse was to be afforded former spouse SBP coverage. 3. Given the language of the divorce decree now requires the applicant to provide former-spouse SBP coverage, it would be appropriate to amend his DD Form 2656 to reflect he elected former-spouse coverage. 4. The applicant requests the start-date of the withdrawal of premium be set for the date of the Board's decision. Had he elected former-spouse coverage, however, it would have been effective the date he was placed on the Retired List. As such, while his election can be corrected, the starting date for the payment of premiums cannot. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150008718 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008718 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2