IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140012976 


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) election from "spouse" to "former spouse" upon his divorce from his former spouse, Y___, on 18 October 2007.

2.  The applicant states when he and his former spouse were divorced on 18 October 2007 neither of them was aware of the requirement to make any changes to his SBP election.  They had been married for over 24 years and he elected SBP coverage for "spouse" when he retired and she was the beneficiary. Their divorce decree required that he provide SBP for his former spouse.  He paid for SBP from the time he retired until the Army cancelled his SBP.

3.  The applicant provides two letters, a divorce decree, and a statement from his spouse.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 4 October 1977.  He and his former spouse, Y___, were married on 18 June 1985.

3.  On 20 March 1992, in conjunction with his upcoming retirement, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel), wherein he elected to "spouse" SBP.

4.  On 31 May 1992, he was retired from active duty in the rank/grade of chief warrant officer three (CW3)/W-3 and on 1 June 1992 he was placed on the Retired List.  He completed over 27 years of creditable active service.

5.  The applicant provides a Final Decree of Divorce, dated 18 October 2007, wherein it shows he and Y___ were granted a divorce on that date.  The decree stated, in part, that at the present time Y___ was named beneficiary under his SBP and the SBP should be continued and maintained in full force during his lifetime.  Therefore, it was ordered and decreed that he shall immediately designate Y___, his former spouse, as beneficiary under SBP and she shall continue to remain beneficiary as his former spouse under that plan. 

6.  On 22 September 2014, by email, an official with the Defense Finance and Accounting Service (DFAS) verified the applicant currently had no SBP beneficiary and did not deem his election to change his SBP election to "former spouse" within the required 1 year timeframe.

7.  The DFAS official also included a DD Form 2656 (SBP Election Statement for Former Spouse Coverage), dated 9 March 2014, the applicant submitted to DFAS in March 2014 requesting his SBP election be changed to "former spouse" effective 18 October 2007 as required by his divorce decree.  This form shows the applicant was married to S_______ at that time and the date of their marriage as 27 June 2008.

8.  On 6 March 2015, by email, the DFAS official verified that in 2014, as the result of a Congressional Inquiry, DFAS stated the applicant's request to change his SBP election from "spouse" to "former spouse" was denied, his SBP "spouse" coverage was cancelled, his account was audited, and DFAS refunded him the SBP premiums he had paid since his divorce from his former spouse Y___.  It appears DFAS was not aware that he had remarried on 27 June 2008 and did have a valid SBP beneficiary since that date.
9.  The applicant provides a notarized statement, dated 16 March 2015, wherein his current spouse S________ stated she was aware of and agreed to the applicant's request to change his SBP election to "former spouse."  When she and the applicant married on 27 June 2008, he explained to her at that time that he was required to provide SBP coverage for his former spouse based on the requirements of his 2007 divorce decree.  She further stated his SBP coverage was wrongfully cancelled and should be reinstated to "former spouse."

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.

11.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members.

12.  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.  An election, once made, was irrevocable except in certain circumstances.  Elections are made by category, not by name.

13.  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 applicant requests the correction of his records to show he changed his SBP election from "spouse" to "former spouse" on 18 October 2007.

2.  On 31 October 1992, he retired from active duty and elected SBP coverage for "spouse."   He and his former spouse, Y___, were divorced on 18 October 2007.  Their divorce decree stipulated that he would name his former spouse, Y___, as the beneficiary of his SBP and change his SBP election to "former spouse."  However, in violation of the court order he failed to do so.

3.  On 27 June 2008, he married his current spouse, S_______, and maintained SBP coverage for "spouse" until DFAS cancelled his SBP "spouse" coverage in 2014 after he requested his SBP coverage be changed to "former spouse" based on his divorce decree.  DFAS would not process his request as it was received more than 1 year after the date of the divorce decree.

4.  The former spouse should not be punished because she and the applicant were unaware of the requirement to file his former spouse election within 1 year of the divorce decree.  Therefore, given the concurrence to the change of his current spouse and lawful beneficiary, it would be appropriate to grant the applicant relief and show he submitted his request for a change in SBP election 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 made a request for his SBP election to be changed from "spouse" to "former spouse" on 19 October 2007 and DFAS timely received and accepted his change in election. 
* auditing the applicant's account and collecting any outstanding SBP premiums due as a result of this correction



      ___________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)                                         AR20140012976





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ABCMR Record of Proceedings (cont)                                         AR20140012976



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