IN THE CASE OF: BOARD DATE: 24 August 2022 DOCKET NUMBER: AR20220003201 APPLICANT REQUESTS: in effect, correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage from "Spouse Only" to "Former Spouse" within 1 year of divorce. 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) * Self-Authored Letter, 17 November 2021 * Exhibit A – Circuit Court Former Wife's Motion for Contempt and Enforcement, 1 September 2021 * Exhibit B – Applicant's Attorney's Letter to Former Spouse's Attorney, 25 April 2016 * Exhibit C – DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), 15 September 2021 * Exhibit D – Retiree Account Statement, 19 February 2016 * Exhibit E – DD Form 2565-1, undated and unsigned * Exhibit F – Former Spouse's Letter to the Applicant, undated * Exhibit G – Applicant's Attorney's Letter to the Applicant's Former Spouse, 12 June 2019 * Exhibit H – Former Spouse's Letter to the Applicant's Attorney, 10 July 2019, with enclosures – * Circuit Court Marital Settlement Agreement, 21 May 2008 * Circuit Court Final Judgment of Dissolution of Marriage, 15 July 2008 * Current Spouse's Notarized Letter, 2 August 2022 FACTS: 1. The applicant states he was court-ordered to maintain his former spouse as the beneficiary of his SBP. He was unaware that he needed to change the designation from "Spouse" to "Former Spouse" to effect this action. He requests correction of his records to show he changed his SBP coverage from "Spouse Only" to "Former Spouse" within 1 year of divorce in compliance with the court order. 2. In his self-authored letter, 17 November 2021, he states: a. He retired from the U.S. Army in August 2003. At that time, he was married to and he elected SBP coverage for "Spouse Only." In July 2008, they divorced and as part of the final divorce decree, the Court required that he maintain his former spouse as the beneficiary of his SBP. b. He did not change his SBP beneficiary designation from "Spouse Only" to "Former Spouse," as he assumed it would be maintained in her name as he had initially elected. His former spouse also did not submit any paperwork to change the beneficiary to "Former Spouse." Neither of them was aware that they needed to take action to maintain this until recently. They both believed, similar to a life insurance policy, the beneficiary could not, and would not, change without approval of both him and his former spouse. They were totally oblivious to any policies or laws which required them to take action to maintain her as the beneficiary. c. He recently was served with a motion for contempt by his former spouse that claimed he had removed her as the beneficiary of his SBP, which is in direct violation of the finalized divorce decree. He contacted the Defense Finance and Accounting Service and was informed that 1 year after his new marriage, the SBP was automatically changed to his current spouse's name without his authorization. He had no idea that was possible without his consent. d. He is currently working as a law enforcement officer and does not want this issue to negatively impact his employment status. He wants to comply with the court order and to have the SBP beneficiary designation as it was agreed, intended, and ordered. He respectfully requests correction of his records to reinstate his former spouse as the "Former Spouse" beneficiary of his SBP to comply with the court order. 3. He was serving in the Regular Army when he completed his DD Form 2656 (Data for Payment of Retired Personnel), 16 June 2003. The form shows in: * item 26 (Beneficiary Category(ies)) – he elected coverage for "Spouse Only" and marked "I Do Have Dependent Children" * item 27 (Level of Coverage) – he marked "I Elect Coverage with a Reduced Base Amount of $572.00" * item 30 (Spouse) – his then-spouse's signature, concurring with his SBP election, 16 June 2003 * item 31 (Witness Name) – the witness's name and signature, 16 June 2003 4. He retired from on 31 August 2003. 5. The Circuit Court Marital Settlement Agreement, 21 May 2008, shows the applicant's and his former spouse's marital settlement agreement, including the statement: "The Husband [applicant] shall maintain the Wife [former spouse] as irrevocable beneficiary on his Survivor Benefit Program [Plan]." 6. The Circuit Court Final Judgment of Dissolution of Marriage, 15 July 2008, shows the court ordered and adjudged: * the bonds of matrimony between the applicant and his spouse were hereby dissolved * the Marital Settlement Agreement was hereby approved, ratified, and incorporated into this Final Judgment of Dissolution of Marriage 7. His military records contain no evidence of a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) or DD Form 2656-10 (SBP/Reserve Component SBP Request for Deemed Election) within 1 year of divorce. 8. His marriage certificate to his current spouse is not in evidence for review. 9. His Retiree Account Statement, 19 February 2016, shows his SBP coverage as "Spouse Only" and his spouse's birthdate as (Note: his former spouse's birthdate is) 10. The Circuit Court Former Wife's Motion for Contempt and Enforcement, 1 September 2021, states the applicant is in civil contempt of the Final Judgment because he removed his former spouse as the beneficiary of his SBP. SBP documents show the person named as the SBP beneficiary has a birthdate that is not his former spouse's birthdate. (Note: there is no evidence of the court's decision on the former spouse's motion.) 11. His DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), 15 September 2021, submitted to the Defense Finance and Accounting Service shows he requested to change his SBP coverage to "Former Spouse." Item 2 (Are You Currently Married?) is marked "Yes." Item 6 (Date of Birth of Former Spouse) shows his former spouse's birthdate as 12. The email from the Department of the Army Deputy Chief of Staff, G-1 (SBP Coverage), 25 July 2022, states that according to the Defense Retired and Annuitant Pay System, the applicant's current SBP coverage is for "Spouse" with no divorce noted. The monthly premiums being charged are $21.38. 13. His current spouse's notarized letter, 2 August 2022, states she is aware of her spouse's request to return his former spouse as the beneficiary of his SBP. She was not married to him during any portion of his military career and knowingly and willingly waives her rights to this benefit. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed that it was through no fault of the applicant that he was unaware that he needed to change the designation from "Spouse" to "Former Spouse.” The Board noted the applicant was court-ordered to maintain his former spouse as the beneficiary of his SBP. The Board determined the record should be corrected to show he submitted a written and timely request to DFAS to change his Survivor Benefit Plan (SBP) coverage from "Spouse Only" to "Former Spouse" within 1 year of divorce. 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 changed the Survivor Benefit Plan (SBP) coverage within one year of 15 July 2008 (date of divorce), from “spouse” to “former spouse,” and his election was received and processed in a timely manner by the appropriate DFAS 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. ADMINISTRATIVE NOTE(S): 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." REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and 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. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 2. 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. 3. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree, upon remarriage, to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to the first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 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. 6. Title 10, U.S. Code, section 1454 (Correction of Administrative Errors), states the Secretary concerned may, under regulations prescribed under section 1455 of this title, correct or revoke any election under this subchapter when the Secretary considers it necessary to correct an administrative error. 7. Title 10, U.S. Code, section 1552 (Correction of Military Records: Claims Incident Thereto), states the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003201 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1