IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150004527 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 Reserve Component Survivor Benefit Plan (RCSBP) coverage from "spouse" to "former spouse" within 1 year of his divorce. 2. The applicant states, in effect: a. He began receiving retired pay in 2013. For the first couple of months the Defense Finance and Accounting Service (DFAS) invoices reflected that his former spouse had RCSBP coverage and the premiums for this coverage were being deducted from his retired pay. In late 2013, the invoices started to omit mention of his former spouse and ceased deducting for her premiums and the prior premiums were refunded. He requested an explanation and received a written explanation from DFAS in March 2014. b. He did not know that he had to formally elect to keep his former spouse as the beneficiary of his pension. He assumed since he did not remove her as the primary beneficiary and continued to pay the SBP premiums at the time of their divorce and thereafter, that she would continue to be the beneficiary. 3. The applicant provides: * a self-authored statement * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * SBP Fact Sheet * Divorce Judgment * Stipulation and Agreement for Judgment * a letter from DFAS CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born on 28 June 1953. He and Mary were married on 26 October 1982. 2. The applicant was appointed as a Reserve commissioned officer of the Army on 28 June 1981. He served in a variety of assignments and he attained the rank of colonel (COL). 3. On 1 August 2001, the U.S. Army Reserve Personnel Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. The letter further informed him he was entitled to participate in the RCSBP and that by law, he had only 90 calendar days from the date he received the letter to submit his DD Form 1883 (SBP Election Certificate). 4. On 24 October 2001, the applicant submitted his DD Form 1883, in which he elected Option B requesting full spouse and children coverage. 5. On 4 April 2008, he and Mary entered into a Stipulation and Agreement for Judgment. This agreement stipulated that Mary would remain a beneficiary of his accrued retirement benefit in the event of his death. The applicant and Mary divorced on 4 April 2008. 6. On 5 February 2013, with his application for retired pay at age 60, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was single and he had two dependent sons born in February 1990 and August 1995 respectively. He elected "former spouse" SBP coverage based on the reduced amount of $1,957.00 per month. 7. On 5 April 2013, the U.S. Army Human Resources Command published orders placing him on the Retired List in his retired grade of COL effective 28 June 2013, his 60th birthday. 8. On 10 March 2014, DFAS corresponded with the applicant and advised him that a deemed election form to cover his former spouse was not received within one year of their divorce date; 4 April 2008. As the request was not received in time, DFAS had no choice but to remove his former spouse from his SBP election. Under the current circumstances, the only way that his former spouse could be returned to his retired pay account to receive SBP payments is by an official change request from the Army Board for Correction of Military Records (ABCMR). There is no evidence which shows either the applicant or his former spouse submitted a request for deemed election to DFAS within 1 year of their divorce. 9. The applicant notes in his application to the Board that he has not remarried. 10. 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. 11. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age  60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday * Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60 12. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP; the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60. 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. 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. 15. 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. By law and regulation, Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt. The applicant's records indicate that he elected to participate in the RCSBP within 90 days of receiving his 20-year letter and that he elected Option B, full spouse and children SBP coverage in 2001 with annuity payments to begin on what would have been his 60th birthday in the event of death prior to that age. 2. He and Mary, his former spouse, signed a marital property Stipulation and Agreement for Judgment on 4 April 2008. It stipulated that he would maintain an SBP annuity for the former spouse. This agreement was incorporated into their divorce decree on 4 April 2008. However, even though the applicant continued to pay the SBP premiums, he did not change his SBP election from "spouse and children" to "former spouse" and Mary, his former spouse, did not make a deemed election for former spouse coverage within 1 year of the divorce. 3. 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 spouse SBP beneficiary. Neither party meet the law's requirements regarding changing the spouse coverage to former spouse coverage. 4. Nevertheless, there is no evidence the applicant remarried. Additionally, his pay records show he continued to pay SBP premiums and once he was became aware that his former spouse was not covered, 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 maintain the SBP coverage for his former spouse. 5. As such, as a matter of equity, his records should be corrected 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 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 the applicant submitted a request to change his SBP election from spouse and children to former spouse on 1 May 2008 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) AR20150004527 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004527 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1