IN THE CASE OF: BOARD DATE: 6 August 2021 DOCKET NUMBER: AR20210007481 


APPLICANT REQUESTS: 

•restoration of his Survivor Benefit Plan (SBP) spouse coverage for his formerspouse

•resumption of deduction of SBP premiums from his retired pay account withappropriate credit for all previously paid SBP premiums



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

•State Circuit Court Final Decree of Divorce, 25 November 2014

•DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage),22 July 2020

•Retiree Account Statements, 22 July 2020 and 21 August 2020



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10,U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.On 29 April 2020, his SBP election was deleted and premiums stopped beingdeducted from his retired pay following a determination by a paralegal with the Defense Finance and Accounting Service (DFAS) Garnishments Department. 

b.He did not discover this action until receipt of a routine Retiree AccountStatement he received in August 2020. He contacted DFAS on 25 August 2020 and was advised to submit an application to the ABCMR for this correction. 

c.On 25 August 2020, a DFAS representative reviewed the notes of the DFASparalegal and determined the paralegal made the deletion decision as she did not think continuation of SBP coverage for his former spouse was required by a divorce decree. The DFAS representative indicated it was too late to submit a copy of the divorce decree directly to DFAS because the 1-year time limit from the date of divorce had expired. 

3.His DA Form 4240 (Data for Payment of Retired Army Personnel), 28 July 1992,shows he elected SBP coverage for his spouse and dependent children.

4.He retired on 31 August 1992. He completed 25 years, 2 months, and 24 days of netactive service.

5.His State Circuit Court Final Decree of Divorce, 25 November 2014, shows hisformer wife's entitlement to one-half of his military retirement benefit. Additionally, in theevent that he predeceases his former spouse, payment of the retirement benefit wouldbe terminated and replaced by SBP payments. (Note: the court order does notspecifically direct the applicant to change his SBP from spouse to former spousecoverage.)

6.His records contain no evidence of a DD Form 2656-1 (SBP Election Statement forFormer Spouse Coverage) completed within 1-year of his divorce.

7.His Retiree Account Statement, 22 July 2020, shows his deduction for an SBPpremium and a deduction of one-half of his retired pay for his former spouse. His SBPcoverage is shown as "Spouse Only" and his spouse's date of birth is shown as that ofhis former spouse as indicated on his DA Form 4240, 28 July 1992.

8.His DA Form 2656-1, 22 July 2020, shows he requested to change his SBPcoverage from spouse to former spouse due to his divorce. He, his former spouse, anda witness signed the request on 22 July 2020.

9.His Retiree Account Statement, 21 August 2020, shows no deduction for an SBPpremium; however, it does show his former wife's entitlement to one-half of his militaryretirement benefit. His SBP coverage is shown as "No SBP Election is Reflected onYour Account."

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that some relief was warranted.  The applicant’s contentions, the military record, and regulatory guidance were carefully considered.  The evidence provided shows the applicant intended to provide his former spouse coverage under the SBP after the divorce.  The Board determined there is sufficient evidence to grant relief by changing the lection; however, the applicant is advised that he will have to catch up on premiums accordingly. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:XX :XX :XX GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined that the evidence presented was sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by showing heproperly elected former spouse coverage under the Survivor Benefit Plan (SBP) on26 November 2014, upon his divorce, and his election was received and processed in atimely manner by the appropriate DFAS office.

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to crediting him with premiums for the lapsed period.


Microsoft Office Signature Line...

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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Public Law 92-425, enacted 21 September 1972, established the SBP. The SBPprovided that military members on active duty could elect to have their retired payreduced to provide for an annuity after death to surviving dependents. An election, oncemade, was irrevocable except in certain circumstances. This law also provided thatevery member having a spouse and/or child(ren), who retired/transferred to the RetiredList on or after that date, was automatically covered under SBP at the maximum rateunless he/she elected otherwise before retirement or transfer to the Retired List.

3.Public Law 97-252, the Uniformed Services Former Spouses Protection Act(USFSPA), 8 September 1982, established SBP for former military spouses. This lawalso decreed that State courts could treat military retired pay as community property indivorce cases if they so choose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the retired service member by virtue of the retired service member's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 
 
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 service member is received within 1 year of the date of the court order or filing involved. 
 
//NOTHING FOLLOWS//