IN THE CASE OF:
BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140005690
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 elected former spouse coverage under the Survivor Benefit Plan (SBP) in a timely manner.
2. The applicant states he elected SBP coverage for his spouse, A____, upon retirement in November 2007. Upon their divorce in September 2012, he was ordered by the Court of New York State to provide former spouse SBP coverage for his former spouse. When he retired, he had not been counseled on what to do if he divorced. Therefore, he was not aware he had to submit a request to the Defense Finance and Accounting Service (DFAS) to change his SBP from spouse to former spouse. He continued to pay his SBP premiums and thought he was in compliance. He requests his SBP be reinstated for former spouse coverage. He states he is currently single and never remarried.
3. The applicant provides three court orders and three affidavits of mailing.
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 and his spouse, A____, were married on 23 November 1979. He enlisted in the Regular Army on 29 September 1982. He attained the rank/grade of sergeant first class (SFC)/E-7 on 1 September 2001.
3. In conjunction with his upcoming retirement, he completed a DA Form 2656 (Data for Payment of Retired Personnel), on 19 November 2007, wherein he listed his spouse as A____ and indicated he had no dependent children. He elected SBP spouse coverage based on the full gross pay.
4. He was honorably retired from active duty on 30 November 2007 in the rank of SFC and he was placed on the Retired List on 1 December 2007.
5. He provides a Supreme Court of the State of New York:
a. Notice of Settlement, dated 14 November 2008, wherein it stated, in part, the applicant and his spouse agreed he would pay her half of his military retirement pay and she would continue to be the beneficiary of all health-related coverage as long as she was eligible.
b. Judgment of Separation, dated 25 June 2009, wherein it stated based on a stipulation of settlement, dated 14 November 2008, his spouse would continue to be the beneficiary of all military health-related coverage as long as she was eligible.
c. Judgment of Divorce, dated 12 September 2012, wherein it stated, in part, the marriage of the applicant and his spouse was dissolved. It was ordered that his spouse was entitled to her share of his retirement pension by a Qualified Domestic Relations Order and he was entitled to his share of her retirement benefits. Pursuant to the stipulation placed on the record on 23 July 2010, she was entitled to his survivorship benefit and she would continue to provide him 50 percent (%) of the SBP fee. The 23 July 2010 stipulation is not available for review with this case.
6. There is no evidence that shows within 1 year of the divorce decree the applicant or his former spouse requested his SBP election be changed from spouse to former spouse based on the court order.
7. On 15 April 2014, by email, a DFAS official confirmed the applicant had no eligible beneficiary and had originally elected SBP coverage for his spouse. An attempt was made to convert the coverage to former spouse but it was received on 4 November 2013, greater than 1 year from the date of the divorce.
8. With the email, DFAS provided a letter they received from the applicant's former spouse's counsel, dated 17 October 2013, wherein, in part, it stated he was enclosing a Supreme Court of the State of New York Court Order, dated 14 August 2013; Judgment of Divorce, dated 12 September 2012; and DD Form 2293 (Application for Former Spouse Payments from Retired Pay), dated 19 August 2013. The Court Order showed the applicant was ordered to pay his former spouse 50% of his disposable retired pay and provide her with former spouse SBP coverage. The DD Form 2293 shows his former spouse requested payment of a percent of his disposable retired pay.
9. 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.
10. Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members.
11. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the members 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.
12. Title 10, U.S. Code, section 1448(b)(3) permitted 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant elected SBP coverage for his spouse upon his retirement on 1 December 2007. On 12 September 2012, he and his spouse divorced and he was ordered to provide former spouse SBP coverage as stipulated in a prior settlement agreement. However, he failed to request his SBP election be changed from spouse to former spouse within 1 year of his divorce.
2. The former spouse should not be punished because the applicant was unaware of the requirement to file his request for a change of his SBP election within 1 year of the divorce decree. Therefore, it would be appropriate as a matter of equity to grant the applicant relief and show he submitted his request for a change in SBP coverage from spouse to former spouse in a timely manner.
BOARD VOTE:
___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:
* the applicant submitted a request to DFAS for his SBP coverage to be changed from spouse to former spouse effective 12 September 2012
* DFAS timely received and accepted his change in SBP coverage within 1 year of his divorce date of 12 September 2012
_______ _ _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) AR20140005690
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ABCMR Record of Proceedings (cont) AR20140005690
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