BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160004237 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160004237 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 records to show he requested former spouse Survivor Benefits Plan (SBP) coverage within 1 year of his divorce. 2. The applicant states he wants the SBP coverage updated for his former spouse, Josefina. Upon his retirement, the military did not process the proper DD Form 2656 (Data for Payment of Retired Personnel) for former spouse (Josefina) SBP coverage. He has a court order assigning SBP coverage to Josefina. He would like to comply, so he is not in contempt of such court orders. 3. The applicant provides an Alimony and Equitable Distribution Order. CONSIDERATION OF EVIDENCE: 1. The applicant and Xxxxxxx were married on 25 December . 2. He enlisted in the Regular Army (RA) on 2 August 1989. 3. He provides an Alimony and Equitable Distribution Order, executed on 22 March 2005. The order stipulated that: * Josefina shall be the applicant's SBP beneficiary and she shall remain his irrevocable beneficiary * He (the applicant) shall execute any documents necessary to make or extend the election * the parties recognized that the order must be tendered to the Defense Finance and Accounting Service (DFAS) within 1 year of the parties divorce to allow DFAS to honor the SBP provisions herein 4. On 14 December 2010, he executed and signed a Servicemembers' Group Life Instance Election and Certificate Form, wherein he elected his spouse, Olga, as the beneficiary. The form does not list their date of marriage. 5. He was honorably retired from the RA on 30 April 2011. 6. His military records contain no SBP election forms. 7. On 26 April and 28 November 2017, DFAS advised a staff member of the Army Review Boards Agency that there was no DD Form 2656 on file or any other SBP documents pertaining to the applicant within their office. Also, there was no SBP information in the archives. The SBP portion of the applicant's account had been in Automatic Coverage since he retired in 2011. The reason it was an Automatic Coverage for SBP on the account was due to the non-receipt of a DD Form 2656. The current Automatic Coverage in their system listed the beneficiary as a spouse, Olga M_. 8. On 11 December 2017, the Fort Bragg Retirement Services Office advised an Army Review Boards Agency staff member that their office does not have copies of an election pertaining to the applicant. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. 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 for former military spouses. 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 on active duty and had not yet made an SBP election. 4. 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. 5. 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: 1. The applicant was married to Josefina on 25 December 1982. They were divorced on 22 March 2005. An Alimony and Equitable Distribution Order stipulated that Josefina would be the designated former spouse beneficiary of his SBP. However, there is no evidence that the applicant made a former spouse SBP election within one year of his divorce or that his former spouse, Josefina, requested a deemed election, also within one year of the divorce. 2. The applicant retired in April 2011. At the time, he was married to Olga, though his date of marriage is unknown. Although Olga, the current spouse, became an eligible beneficiary a year after she married the applicant, her interest does not become a vested interest until his death (assuming they remain married and she becomes his widow). It is only at that point that she becomes entitled to the annuity and that the Board could not act against her property interest without her being afforded due process. 3. There is nothing to prevent the Board from giving the applicant the correction he seeks in order to bring him into compliance with the terms of the divorce decree. Such result simply effectuates the terms of the court order BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160004237 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 changed his Survivor Benefit Plan election from "spouse" to "former spouse" within 1 year of his divorce on 22 March 2005 * showing his request was timely received and processed by the appropriate Defense Finance and Accounting Service office 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004237 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004237 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2