IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150006933 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 elected to change his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" coverage within 1 year of his divorce. 2. The applicant states: a. His Divorce Decree and Marital Settlement Agreement gave his former spouse all her normal military benefits, and directed she retain survivor benefits. b. At the time of the divorce his former spouse (Diane) was designated as his SBP beneficiary. Neither of them knew that he had to designate her as the "Former Spouse Beneficiary" after the divorce. c. The divorce court has ordered him to correct this error and restore her as his SBP beneficiary. 3. The applicant provides: a. Transmittal letter from his counsel; b. Final Judgement of Dissolution of Marriage, dated 4 October 2007, Marital Settlement Agreement, Order of Contempt, Order from Case Management Conference, and two subsequent court orders pertaining to his marriage with Diane; c. DA Form 2656 (Data for Payment of Retired Personnel), dated 20 May 1997; d. His 31 July 1997 DD Form 214 (Certificate of Release or Discharge from Active Duty); and e. Final Divorce Decree, dated 27 January 2015, and Marital Settlement Agreement from his marriage to Lori. CONSIDERATION OF EVIDENCE: 1. The applicant retired as a Regular Army Colonel/0-6 effective 1 October 1997. 2. He and Diane married on 14 January 1966. 3. A DA Form 2656, dated 20 May 1997, shows he elected full SBP coverage for spouse only. 4. The applicant and Diane divorced on 7 October 2007. 5. Their Marital Settlement Agreement was incorporated into their 4 October 2007 Final Divorce Decree. The Settlement Agreement states under Military Benefits: “The Wife shall be entitled to be designated as the sole survivor of the Husband's military pension plan, and the Husband shall designate her as the irrevocable beneficiary thereof." 4. There is no indication that the applicant changed his SBP coverage from "spouse" to "former spouse" coverage. Additionally, there is no indication his former spouse, Diane, made a request for a deemed election. 5. The applicant married Lori on 4 June 2008 and they divorced on 27 January 2015. A review of their Final Divorce Decree and Marital Settlement Agreement shows there is no legal obligation or requirement for the applicant to provide SBP beneficiary status for her. 6. 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. 8. 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. Additionally, Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 9. 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 on active duty and had not yet made an SBP election. 10. 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. 11. 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. The evidence of record shows the applicant elected SBP spouse only coverage for his then spouse Diane on 20 May 1997. He and Diane were divorced on 7 October 2007 and their divorce decree stipulated Diane would be the designated beneficiary of his SBP. There is no indication that he submitted the necessary forms to change his SBP election from "spouse" to "former spouse" within 1 year of his divorce. 2. Because SBP elections are made by category, not by name, once the applicant and his spouse were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. He was required to make a former spouse election as stipulated in the divorce decree. 3. Therefore, sufficient evidence exists to change his SBP coverage from "spouse" to "former spouse" and, as such and only as a matter of equity, his record should be corrected to show he did so within one year of his divorce 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 he elected SBP coverage for former spouse within one year of his divorce on 7 October 2007, on 8 October 2007, and that his request was received by DFAS and processed by the appropriate 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) AR20110002268 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006933 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1