IN THE CASE OF: 

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130020361 


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 military records by showing he changed his Survivor Benefit Plan (SBP) election from former spouse coverage to spouse coverage.

2.  The applicant states:

	a.  He received incorrect and incomplete information regarding the SBP when he retired in 1992.  He out-processed in the middle of July 1992 and retired on  31 August 1992.  He divorced his first wife prior to the date of his retirement.  

	b.  He was briefed by the transition assistance officer that were he to remarry, his new wife would not be covered by the SBP for the first year of marriage.  If he had died during that time, no retirement payment would be paid to any beneficiary.  The applicant inquired about designating his former spouse for the first year of his subsequent marriage provided he could then change the beneficiary to his second wife.  He was informed that he could do so, if he informed the Army within a year of the new marriage.  

	c.  He remarried on 17 November 1992.  Sometime in May or June 1993, he sent copies of his marriage certificate, divorce decree, and new marriage certificate to the Defense Finance and Accounting Service (DFAS).  He requested to change his SBP beneficiary from former spouse to spouse.  His request was denied but he was not advised why it was denied, whether or not he had an appeal procedure, or if there was a time constraint.  
	d.  He contends DFAS personnel advised him that he has been voluntarily paying for SBP coverage.  He told DFAS that he just wanted to change the beneficiary from his former spouse to his current spouse.  Because the court did not grant any garnishment order or mandate payment of retirement or SBP to his former spouse in the divorce decree, his former spouse's rights are not affected by a change of beneficiary to his current wife.  However, his present wife is denied any beneficiary benefits from his retirement.

3.  The applicant provides copies of:

* Orders S95-11, U.S. Total Army Personnel Command, dated 15 May 1992
* Orders 121-41, U.S. Army Support Command, dated 26 May 1992
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Marriage between the applicant and his first wife, dated       23 July 1971
* Divorce Decree, dated 23 June 1992
* Marriage License and Certificate, dated16 and 17 November 1992

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.  Orders S95-11, issued by TAPC on 15 May 1992, announced his retirement from active service effective 31 August 1992 in the rank/grade of lieutenant colonel/O-5.

3.  The divorce decree he submitted, dated 22 June 1992, indicates the marriage between him and his first wife was dissolved.  Neither party was required to pay alimony.  He retained the entirety of his military retired pay and his former spouse waived any claim, right, or interest she may have had in and to any such retirement benefits.

4.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 9 July 1992, shows he designated his former spouse as beneficiary for his SBP.

5.  A DD Form 214 ending on 31 August 1992 shows that the applicant was retired due to length of service.

6.  A marriage license indicates he remarried on 17 November 1992.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

8.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.

9.  Title 10, U. S. Code, section 1448(b) (Insurable Interest and Former Spouse Coverage), subsection 1448(b)(2) states that upon becoming eligible to participate in the SBP a person who has a former spouse may elect to provide an annuity to that former spouse.

10.  Title 10, U. S. Code, section 1450(f)(1)(A) and the Financial Management Regulation (FMR), Volume 7B, paragraphs 430601 and 430501.B.5 allow a member to change, at any time, from former spouse coverage to spouse coverage, as long as there is no court order or written agreement preventing the change.

11.  In January 2014, DFAS changed the FMR.  Paragraph 440201 H concerning eligible beneficiaries was changed and now states a member may change election coverage from former spouse to coverage for a spouse in accordance with Volume 7B, chapter 43, paragraph 430602 at any time following remarriage, provided the former spouse is still living at the time the Secretary concerned receives the member's election.  If the election change is requested more than 
1 year from the date of the member's marriage, then the spouse becomes an eligible beneficiary on the date of the election receipt and the associated premium is effective on the first day of the month following election receipt. (Italics denote the portion that was changed.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he changed his SBP election from former spouse coverage to spouse coverage.
2.  The available evidence shows he made a voluntary SBP election in 1992 for former spouse coverage.  There is no documentary evidence showing that he changed, or attempted to change this election within a year of his remarriage.  He has provided this coverage for the former spouse for approximately 22 years.

3.  The law and regulation provide that an election of former spouse coverage may be changed at any time as long as there is no court order or written agreement preventing such change and the former spouse is still alive.  The applicant has not provided any documentary evidence showing his former spouse is still alive, and has not addressed why he waited more than two decades to request this change.  This raises doubts concerning why he voluntarily made premium payments.  It also makes it appear that there may have been an understanding, either written or verbal, between him and his former spouse to provide this coverage.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20130020361





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ABCMR Record of Proceedings (cont)                                         AR20130020361



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