IN THE CASE OF: BOARD DATE: 23 September 2008 DOCKET NUMBER: AR20080010158 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his former spouse be reinstated as his beneficiary under the Survivor Benefit Plan (SBP). 2. The applicant states, in effect, that he retired and did not keep up with the SBP requirements, which was an oversight on his part. When he moved, he stopped receiving the Army Echoes with information about SBP until recently. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 28 February 1994; a four-page District Court, Arapahoe County, Colorado, Decree of Dissolution of Marriage, dated 9 August 2004; a State of Michigan Marriage License, dated 24 December 1971; and a State of Colorado Marriage License, dated 30 May 2008. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant married on 26 December 1971. He enlisted in the Regular Army on 15 November 1973. 3. On 10 December 1993, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he elected spouse SBP coverage, full base amount. 4. The applicant retired on 28 February 1994. On 9 August 2004, he divorced. 5. On 30 May 2008, the applicant remarried. 6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. 7. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 8. 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 one 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. DISCUSSION AND CONCLUSIONS: The applicant did not request that his SBP spouse coverage be changed to former spouse coverage in the manner prescribed by law within the statutory one-year time limit. But he now wishes to provide SBP coverage to his former spouse. It would be equitable to correct his records to show that he requested to change his SBP coverage to former spouse coverage in a timely manner. BOARD VOTE: __xx____ ___xx___ ___xx___ 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 that, on 15 August 2004, he made a written request to change his SBP coverage to former spouse coverage and his request was received and processed by the appropriate officials in a timely manner. _________xxxx_________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080010158 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010158 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1