IN THE CASE OF: 

		BOARD DATE: 15 December 2022

		DOCKET NUMBER: AR20220003503


APPLICANT REQUESTS:

*	correction of his Survivor Benefit Plan (SBP) coverage to change it from 
"Spouse" to "Former Spouse"
*	a personal appearance hearing before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Letter to Defense Finance and Accounting Service (DFAS), 23 November 2020, 
with attachments

*	State Circuit Court Final Decree of Divorce , 14 December 
*	DD Form 2656-10 (SBP Former Spouse Request for Deemed Election), 
17 November 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 the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states:

	a.  Within a year of his divorce, his former spouse failed to file a DD Form 2656-10, 
to retain her rights to his SBP coverage. His SBP beneficiary is currently in her name; 
however, DFAS is seeking to change his beneficiary to his current spouse.

	b.  His former spouse's lawyer made contact with DFAS and coordinated for her to 
receive half of his retirement income but neglected the DD Form 2656-10. They were 
not notified of the discrepancy until November 2020, 19 years after their divorce. It was 
the divorce court's judgement, and his desire, to keep his former spouse as his SBP 
beneficiary. She completed the DD Form 2656-10 and he submitted it to DFAS along 
with his letter to DFAS in November 2020. He was notified this month that the request to 
leave the SBP beneficiary in her name was denied. DFAS recommended appealing this 
decision.

3.  His DA Form 4240 (Data for Payment of Retired Army Personnel), 25 July 1991, 
shows in:

	a.  Part III (SBP Election) – he elected SBP coverage for his spouse and dependent 
children based on the full amount of retired pay.

	b.  Item 14a (Name of Spouse) – the name of his former spouse, with a date of birth 

4.  He retired on 31 August 1991. He completed 21 years, 1 month, and 20 days of total 
active service.

5.  His State Circuit Court Final Decree of Divorce a, 14 December, shows his former 
wife's entitlement to one-half of his military retirement benefit. His former spouse shall 
also receive the survivor's benefit that is currently elected by the applicant, and the 
parties shall share equally the cost of that benefit.

6.  His records contain no evidence of a DD Form 2656-1 (SBP Election Statement for 
Former Spouse Coverage) or of a DD Form 2656-10 completed within 1-year of his 
divorce.

7.  The applicant's marriage certificate for his current spouse is not in evidence.

8.  On 17 November 2020, his former spouse completed a DD Form 2656-10, to deem 
an election for Former Spouse SBP coverage. The form shows in:

*	item 12a (Date Married to Member) –February 
*	item 12b (Date of Divorce) – December
*	item 12c (Are You Currently Married?) – she marked "YES"
*	item 12d (If Yes, Date of Current Marriage) – December Note: her age at the time 
of her remarriage is 52]

9.  In the applicant's letter to DFAS, 23 November 2020, he states:

	a.  The crux of the matter is that his SBP beneficiary is, and should be, assigned to 
his former spouse. This is his decision and also the decision of the State Circuit Court.

	b.  His former spouse's attorney assured her that he filed the required paperwork 
with DFAS, unfortunately, her attorney has since retired, and his law firm shredded all 
documents prior to 2008. His former spouse cannot find a copy of her attorney's intent 
to file.

	c.  He can clearly state his intent is to leave his SBP annuity to his former spouse. 
He has enclosed the new DD Form 2656-10, signed by his former spouse.

10.  The response from DFAS is not in evidence.

11.  The email from the Department of the Army Deputy Chief of Staff, G-1 (SBP 
Coverage), 3 October 2022, states that according to the Defense Retired and Annuitant 
Pay System, the applicant's account was set up for coverage effective 1 September 
1991, as "Spouse and Child," and the current election as of 1 July 2003, as "Spouse," 
listing his former spouse's name as the beneficiary. As of September, he is no longer 
being charged spouse coverage because he has made 360 payments and is at least 
age 70, so he met the paid-up provision.


BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, a majority of the Board 
found relief is not warranted. The Board found the available evidence sufficient to 
consider this case fully and fairly without a personal appearance by the applicant.

2.  A majority of the Board found it would be inappropriate to grant relief in this case 
without a notarized statement from the applicant’s current spouse in which she clearly 
states she is willing to forfeit her entitlement to the SBP annuity. A majority of the Board 
determined the evidence does not support granting relief at this time, but the applicant 
may submit a request for reconsideration if he is able to provide the aforementioned 
statement from his current spouse. 

3.  The member in the minority found the requested relief is appropriate in light of the 
terms of the applicant’s divorce from his former spouse. The member in the minority 
determined the record should be corrected to show the applicant submitted a timely 
request to change his SBP beneficiary category to former spouse.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:X	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. The ABCMR considers individual applications that are 
properly brought before it. The ABCMR will decide cases on the evidence of record. It is 
not an investigative body. The ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. The ABCMR may, in its 
discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an 
administrative hearing) or request additional evidence or opinions. Applicants do not 
have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a 
formal hearing whenever justice requires.

3.  The DFAS website provides guidance regarding the SBP, RCSBP, and Retired 
Serviceman's Family Protection Plan. SBP elections are made by category, not by 
name. Options include "Spouse Only," "Spouse and Child(ren)," "Former Spouse," 
"Child(ren) Only," "Natural Interest Person," "No Beneficiary," and "Decline." An election 
to participate in these programs is generally made at the time of retirement, although 
some situations allow a retiree to add coverage after retirement. In most cases, costs to 
participate are deducted from the retiree's monthly pay and are based on the amount of 
coverage a retiree elects.

4.  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. This law also provided that 
every member having a spouse and/or child(ren), who retired/transferred to the Retired 
List on or after that date, was automatically covered under SBP at the maximum rate 
unless he/she elected otherwise before retirement or transfer to the Retired List.

5.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act 
(USFSPA), 8 September 1982, established SBP for former military spouses. This law 
also decreed that State courts could treat military retired pay as community property in 
divorce 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.

6.  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.

7.  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.

8.  Title 31, U.S. Code, section 3702 (Authority to Settle Claims), also known as the 
Barring Statute, prohibits the payment of a claim against the U.S. Government unless 
the claim has been received by the Comptroller General within 6 years after the claim 
accrues. Among the important public policy considerations behind statutes of limitations, 
including the 6-year limitation for filing claims contained in this section of Title 31, 
U.S. Code, is relieving the U.S. Government of the need to retain, access, and review 
old records for the purpose of settling stale claims which are often difficult to prove or 
disprove.

9.  Department of Defense Instruction 1332.42 (SPB), establishes policy, assigns 
responsibilities, and provides procedures for administration of the SBP Program, 
Reserve Component SBP Program, Special Survivor Indemnity Allowance and SBP 
Advisory Group.

	a.  Paragraph 9.6f (Paid-Up Premiums) states, effective 1 October 2008, premiums 
will not be required, and the covered participant is considered a fully paid-up participant 
after the later of:

		(1)  The 360th month for which the participant has paid premiums.

		(2)  The month during which the participant attains 70 years of age.

	b.  Paragraph 10.2 (Annuities Payable to Survivors of Retirees) states, the Secretary 
concerned will pay an annuity to an eligible survivor who was an eligible dependent of 
the covered participant or insurable interest beneficiary, commencing on the day 
immediately following the death of a covered participant. A spouse or former spouse 
who is an annuitant will continue to receive an annuity while alive except in the event of 
remarriage before reaching age 55. In the event a spouse or former spouse annuitant 
remarries before age 55:

		(1)  If there are eligible dependent children, the annuity will be divided equally 
among the eligible dependent children.

		(2)  If there are no eligible dependent children, the annuity is suspended. 
However, the annuity may resume if the remarriage is terminated by death, annulment, 
or divorce. The effective day for either the suspension or resumption of the annuity is 
the first day of the month in which the event occurs.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220003503


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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