IN THE CASE OF: BOARD DATE: 19 August 2022 DOCKET NUMBER: AR20220000882 APPLICANT REQUESTS: correction of his records to designate his former spouse as the beneficiary of his Survivor Benefit Plan (SBP). 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) •Letter from Counsel for the Applicant, 1 October 2021 •Final Judgment and Decree of Divorce, 22 March 2017 •Applicant's Affidavit, 27 September 2021 •Current Spouse's Affidavit, 27 September 2021 •DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage),27 September 2021 FACTS: 1.The applicant defers to counsel.2.Counsel states the applicant seeks to have his military records reflect his designation of his former spouse, , as his "Former Spouse" beneficiary of his SBP effective 22 March 2017, the date of their divorce.a.The applicant and married on 17 October 1987 and divorced on 22 March 2017. The Final Judgment and Decree of Divorce clearly orders the applicant to designate as his "Former Spouse" beneficiary for his SBP. The applicant did not do this, and instead has designated his current spouse, as his beneficiary. b. The applicant and his current spouse, , consent to the designation of as the applicant's "Former Spouse" beneficiary under his SBP as required in the original court order. 3. The U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), 27 November 2009, notified the applicantthat he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60. This memorandum also notified him that he was eligible to participate in the Reserve Component SBP (RCSBP) and instructed him to submit a DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election Certificate) within 90 days of the date of the memorandum. 4.The applicant's records do not contain a DD Form 2656-5 or DD Form 1883.5.On 22 March 2017, the applicant and divorced. The Final Judgment and Decree of Divorce states: The Husband [Applicant] has a military pension which he shall begin receiving on or about his sixtieth (60th) birthday… Therefore, the Court orders that Wife shall receive 45% of Husband's military retired pay. Wife shall receive her portion directly from the Defense Finance and Accounting Service (DFAS) via a Military Pension Division Order which has been prepared and filed contemporaneously with this Final Judgment and Decree of Divorce…. The Court further orders that Husband shall designate Wife as the "former spouse" beneficiary of his military retired pay at the maximum benefit allowed. 6.The applicant's records do not contain a DD Form 2656-1 completed within 1 year of divorce.7.On 24 April 2019, the applicant retired and was placed on the Retired List in accordance with the National Defense Authorization Act of 2008 Reduced Age Retirement.8.On 28 January 2021, the Defense Retiree and Annuitant Pay System reflects an SBP deemed election was received, but the application package was incomplete. As a result, the applicant's SBP was suspended.9.On 1 May 2021, the Defense Finance and Accounting Service Military Retired Pay Office notified the applicant that their office was unable to process his SBP request because they were missing information. He was further informed his SBP coverage was in an automatic election coverage status. He was instructed to complete aDD Form 2656-8 (SBP Automatic Coverage Fact Sheet) from the date of his retirement and include his spouse and/or child(ren).10.Affidavits from the applicant and the applicant's current spouse, both dated27 September 2021, reflect their consent to the designation of as the applicant's SBP beneficiary as his "Former Spouse." 11. On 27 September 2021, the applicant completed a DD Form 2656-1 and his signature was properly witnessed. The DD Form 2656-1 reflects this election is being made pursuant to the requirements of a court order. It also reflects the applicant and married on 17 October 1987 and divorced on 22 March 2017. On29 September 2021, the applicant's spouse signed the DD Form 2656-1 and her signature was properly witnessed.BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, and the affidavit signed by his current spouse, the Board agreed the record should show the former spouse is the beneficiary of the SBP in accordance with their divorce decree. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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 properly elected former spouse coverage under the Survivor Benefit Plan on 22 March 2017, and his election was received and processed in a timely manner by the appropriate DFAS office. 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.Public Law 92-425, the SBP, enacted 21 September 1972, provided that militarymembers on active duty could elect to have their retired pay reduced to provide for anannuity after death to surviving dependents. 2.Public Law 97-252, the Uniformed Services Former Spouses Protection Act(USFSPA), enacted 8 September 1982, established SBP for former military spouses.This law also decreed that State courts could treat military retired pay as communityproperty in divorce cases if they so choose. It established procedures by which a formerspouse could receive all or a portion of that court settlement as a direct payment fromthe service finance center. The USFSPA contains strict jurisdictional requirements. TheState court must have personal jurisdiction over the service member by virtue of theservice member's residence in the State (other than pursuant to military orders),domicile in the State, or consent. 3.Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPArelating to the SBP. It permits a person to elect to provide an annuity to a formerspouse. 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 ofdivorce. The member must disclose whether the election is being made pursuant to therequirements of a court order or pursuant to a written agreement previously entered intovoluntarily by the member as part of a proceeding of divorce. //NOTHING FOLLOWS//