BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120020293 


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 correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage from former spouse coverage to spouse coverage.

2.  The applicant states:

	a.  The Defense Finance and Accounting Service (DFAS) erred in processing his former spouse (Deena) as an eligible former spouse.  He contends had DFAS properly vetted the DD Form 2656 (SBP Election Certificate), dated 19 April 1999, and denied his former spouse as eligible, his current spouse would be covered as the proper SBP beneficiary as of 23 December 2000.  

	b.  He believes the decision by DFAS to designate his former spouse as the SBP beneficiary is in error and should be reversed.

	c.  He and Deena were married on 5 May 1983 and they divorced on 
29 January 1997.  He executed a DD Form 2656 for former spouse coverage on 19 April 1999 as required by his divorce decree.  This was 3 years after they divorced.  DFAS accepted the DD Form 2656 even though it was in error (the form was not signed by the former spouse in item 36 (Signature of Spouse)).  His former spouse did not file a deemed election.  He contends former spouse coverage was not an eligible election for the SBP.  

	d.  He retired on 30 June 1999.

	e.  In May 2005, DFAS unilaterally stopped the former spouse SBP coverage for failure to file the required deemed election within one year from their divorce.  In October 2005, DFAS reimbursed him $2,180.74 for the SBP premiums.  DFAS also reimbursed his former spouse $2,139.62 for the SBP premiums.

	f.  In March 2011, DFAS reinstated SBP coverage for former spouse without his knowledge.  DFAS also placed a levy upon his retirement distribution in order to cover the past due SBP premiums for the period July 1999 to February 2011.  His former spouse was responsible for these SBP premiums in the divorce decree, but she chose not to pay.   

	g.  DFAS made an error in accepting his election of former spouse coverage in 1999 and reinstatement of former spouse SBP benefits again in 2010.  Termination of former spouse SBP eligibility in October 2005 was in fact the correct action that resulted from the SBP audit done at that time.

	h.  He was denied relief by DFAS and DFAS officials insisted he can only remove his former spouse if so ordered by an amendment order of the original divorce decree which is clearly and unequivocally prohibited by Federal law.

	i.  His repeated attempts to correct the former spouse error was purposely obstructed by DFAS personnel through a personal relationship between a DFAS pay technician and his former spouse.  In addition, DFAS failed to respond to the Freedom of Information Act requests for information.

	j.  DFAS errantly awarded his former spouse SBP beneficiary status and access to benefits when specifically prohibited by the SBP law.  This was done not once by DFAS but three times.  The first time was in 1999 when the election was made by him and DFAS did not properly investigate the designated beneficiary for eligibility.  DFAS either made a conscious decision to ignore the requirement for the deemed election for a former spouse SBP election, or personnel processing the application were so poorly trained that they had no idea of the limitations on former spouse SBP beneficiary elections.  DFAS did, in fact, discover its error (during an audit) in 2005 by a diligent and knowledgeable pay technician who promptly terminated former spouse SBP eligibility.  Then in 2010, DFAS acted once again outside the SBP statutes and not only re-established his former spouse as the SBP beneficiary, and did so by ignoring additional restrictions on establishing SBP benefits such as open season requirement, the irrevocability of previously-terminated SBP benefits, and failure to notify him of their intention to reinstate former spouse coverage.    

	k.  He directs that DFAS be sanctioned for its pay technician employee conducting an improper personal relationship with his former spouse by obstructing his attempts to resolve the SBP claim and providing his personal information to his former spouse.

	l.  He also directs that DFAS be sanctioned for obstruction of requests made pursuant to the Freedom of Information Act and personal information requests under the Privacy Act requests. 

3.  The applicant provides:

* Divorce decree
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DFAS letter, dated 26 October 2005, terminating former spouse SBP election
* DFAS letter, dated 12 October 2005, refunding SBP premiums
* U.S. Air Force Fact Sheet
* Frequently asked questions pertaining to SBP
* Former spouse's social media page
* DFAS pay technician's social media page
* DD Form 2656, dated 19 April 1999
* DD Form 2656-6 (SBP Election Change Certificate), dated 19 March 2012  

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 Deena on 5 May 1983.  Having prior active service in the Regular Army (RA), he again enlisted in the RA on 30 June 1983.  He remained on active duty through continuous reenlistments.   

3.  He and Deena divorced on 29 January 1997.  The divorce decree states "The respondent (applicant), pursuant to the provisions of The Survivor Benefit Plan: ("SBP") and "Supplemental SBP" ("SSBP") as enacted in Public Law 99-145 ("Defense Authorization Act of 1986"), has agreed to irrevocably and unconditionally provide for the Petitioner (Deena) to continue to receive a fifty-five per cent (55%) interest in his retired pay as an annuity in the event he predeceases her, provided the Petitioner assumes responsibility for and timely pays all costs associated with obtaining the coverage to insure [sic] her continued receipt thereof."      

4.  His DD Form 2656, dated 19 April 1999, shows he elected former spouse and dependent children SBP coverage, based on full gross retirement pay.  Item 36 (Signature of Spouse) of Section VII (Survivor Benefit Spousal Concurrence (Required when member is married and does not elect full coverage)) is blank.  

5.  On 30 June 1999, he retired in the rank of sergeant first class. 

6.  He married Deborah on 23 December 2000.

7.  He provides a letter, dated 12 October 2005, from DFAS which indicates his SBP coverage was adjusted (from spouse and child to child) based on correspondence (dated 19 April 2005) he sent to DFAS.  He was reimbursed $2,129.62 in October 2005.

8.  He also provides a letter, dated 26 October 2005, from DFAS to his former spouse which states former spouse coverage was terminated on 30 April 2005 with an effective date of 1 July 1999.  It appears his former spouse requested to make a deemed election at that time, but her request was denied because the statutory filling deadline had expired.  

9.  He provides a DD Form 2656-6, dated 19 March 2012, which shows he requested to change his coverage to spouse coverage. 

10.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Elections are made by category, not by name.

11.  Public Law 97-252, the Uniformed Services Former Spouses' Protection Act, enacted 8 September 1982, established SBP coverage for former spouses of retiring members.

12.  Title 10, U. S. Code, section 1448(b)(2) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who has a former spouse upon becoming eligible to participate in the SBP to elect to provide an annuity to a former spouse.  

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant and Deena divorced in 1997, when he was still on active duty.  In 1999, upon becoming eligible to participate in the SBP, he elected former spouse coverage as required by his divorce decree as provided for by Title 10, U.S. Code, section 1448(b)(2).  Accordingly, DFAS accepted his election of former spouse coverage.  

2.  He contends DFAS made an error in accepting the DD Form 2656 because it was not signed by his former spouse in item 36.  However, spousal concurrence is required in item 36 when the service member is married and he does not elect full coverage.  It does not apply in cases involving former spouse coverage, and the applicant was not married in 1999. 

3.  It is unclear why DFAS terminated former spouse SBP coverage as of 30 April 2005 with an effective date of 1 July 1999 for failure to file a deemed election.  A deemed election from his former spouse was not needed since he elected former spouse coverage in 1999.    

4.  His contentions pertaining to sanctions against DFAS were also noted.  However, the DFAS does not fall under the purview of this Board.  

5.  The evidence presented is insufficient to grant the applicant the relief requested.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X _______   ___
               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)                                         AR20120020293



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ABCMR Record of Proceedings (cont)                                         AR20120020293



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