IN THE CASE OF: BOARD DATE: 13 April 2011 DOCKET NUMBER: AR20100016067 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 his military records to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. 2. The applicant states he and his former spouse both failed to turn in their divorce decree to change the SBP from spouse to former spouse. 3. The applicant provides his divorce decree in support of his application. CONSIDERATION OF EVIDENCE: 1. He married his former spouse N____ on 3 August 1985. Having prior inactive and active service, he was commissioned as a second lieutenant on 24 May 1988 in the Regular Army and entered active duty. 2. His DD Form 2656 (Data for Payment of Retired Personnel) is not available. 3. He retired on 30 November 2007 in the rank of lieutenant colonel. 4. He and N____ divorced on 18 January 2008. The Constituted Pension Order (Military), dated 25 March 2008, states upon the applicant's death his former spouse shall receive survivor's benefits and said benefits shall continue until her own death. 5. He married his current spouse M____ on 5 December 2008. 6. His DD Form 2656-6 (SBP Election Change Certificate), dated 23 July 2010, shows his current coverage is spouse and child. He requested a change in coverage based on his remarriage and he elected to resume the existing level of coverage for his new spouse. Section IV (Requested Change to Coverage) of this form shows he elected spouse and children coverage. Section V (Level of Coverage) of this form shows he elected full retired pay. 7. Defense Finance and Accounting Service records show his current spouse M____ as the SBP beneficiary. 8. On 15 March 2011, the applicant was notified by separate correspondence that a notarized concurrence statement from his current spouse is required prior to granting the requested relief. He was also informed that failure to provide the statement from his spouse would result in his application being processed based upon incomplete information. To date, no response has been received from the applicant. 9. 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. Elections are made by category, not by name. 10. Public Law 97-252, the Uniformed Services Former Spouses' Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 11. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members. 12. 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: 1. No evidence shows he or his former spouse requested that his SBP coverage be changed to former spouse coverage within the statutory 1-year time limit. 2. There is evidence to show he remarried on 5 December 2008. At the 1-year anniversary of this marriage his current spouse acquired a vested interest in the SBP as his legal beneficiary. The ABCMR may not act to terminate her rights to the SBP annuity by granting the former spouse the SBP without her concurrence, as so doing would deprive the applicant's current spouse of a property interest without due process of law. 3. Although he requests correction of his military records to show he changed his SBP coverage to former spouse coverage, he failed to provide a notarized concurrence statement from his current spouse as requested by the Board. 4. Based on the foregoing, there is no basis for granting the requested relief. 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 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) AR20100016067 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016067 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1