ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 August 2019 DOCKET NUMBER: AR20170000540 APPLICANT REQUESTS: correction of his records to show he elected to change his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse to former spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: He provides a DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant states his RCSBP spousal benefits were terminated in error. They are survivor benefits only. He inadvertently failed to complete the DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) within 1 year of his divorce on 16 June 2014. This was due to a misunderstanding between him and his ex-spouse and him and the military personnel at Fort Jackson, SC. He regrets the error. 2. Review of the applicant’s service record shows: a. The applicant was born in January 1952. He and his spouse were married on 31 August 1974. b. Having prior Regular Army enlisted service, he enlisted in the U.S. Army Reserve on 8 May 1978. He entered active duty on 2 September 1990, in an Active Guard Reserve status. c. On 22 October 1998, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) wherein he was advised of the completion of the required years of service for retired pay. The letter also advised that he was entitled to participate in the RCSBP and he had 90 calendar days from the date of that memo to submit his DD Form 1883 (SBP Election Certificate). d. On 20 November 2006, he submitted a DA Form 2339 (Application for Voluntary Retirement). e. On 24 January 2007, he submitted a DD Form 2656 (Data for Payment of Retired Personnel), wherein he indicated he was married, had no dependent children, and he elected spouse only SBP coverage based on the full amount. His spouse concurred with his election and her signature was witnessed by the Army SBP Counselor, Fort Jackson, on the same date. f. He was honorably retired on 30 April 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show he completed over 20 years of service. g. On 13 June 2014, the applicant and spouse were divorced. Their divorce decree did not address the SBP. However, it stipulated that the applicant would: * transfer 50 percent (%) of his military retirement pay to his spouse, with entitlement to 50% of any increase that may accrue * execute all documents for his spouse to be covered by Tri-Care military insurance after the divorce h. On 6 October 2014, the applicant’s spouse executed a DD Form 2293 (Application for Former Spouse Payments from Retired Pay), requesting a division of property of 50% of the applicant’s disposable retired pay per month. i. There is no evidence the applicant changed his SBP coverage from spouse to former spouse within one year of their divorce. Likewise, there is no evidence his now former spouse submitted a deemed SBP election within one year of their divorce. 3. By law (Title 10, U.S. Code, section 1448), SBP elections are made by category, not by name. a. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. b. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The divorce decree did not require him to elect former spouse SBP coverage. At that point, the applicant had the option to elect former spouse coverage within one year of their divorce; however, there was no evidence showing he attempted to do so. The Board agreed public law requires the SBP election to be made within one year of their divorce. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Additionally, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000540 3 1