IN THE CASE OF: BOARD DATE: 2 September 2014 DOCKET NUMBER: AR20130022154 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, the former spouse of a retired, former service member (FSM), requests she be designated as the beneficiary of his Survivor Benefit Plan (SBP). 2. The applicant states her former spouse was required, under the terms of their divorce decree, to designate her as the beneficiary of his SBP and to have his military records reflect this. 3. The applicant provides a dissolution agreement, divorce decree, and an order amending the final decree. 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 FSM served on active duty as a member of the Regular Army. The date he and the applicant were married is unknown. 3. On 16 March 1988, in conjunction with his upcoming retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel), wherein he elected to provide an SBP annuity, in the event of his death, to his spouse and children, based on the full amount of his retired pay. At the time, the FSM and applicant had one minor child, a daughter born on 16 May 1977. The FSM and his spouse signed this form, and their signatures were witnessed by the Retirement Services Officer at Redstone Arsenal, AL. 4. On 30 June 1988, the FSM was retired from active duty in the rank/grade of master sergeant/E-8. He completed 22 years and 4 days of creditable active service. On 1 July 1988, he was placed on the Retired List. 5. The applicant provides a Marital Dissolution Agreement, dated 21 May 1991, wherein, in part, it states: a. The Defendant (the FSM) shall cause to be executed any and all necessary documents to name the Plaintiff (the applicant) and/or the parties' minor child to be beneficiaries of any survivor benefits to which either would currently be entitled and shall furnish all necessary documents to the Plaintiff relative to same" (emphasis added). b. The Defendant shall make the execution of survivor benefits irrevocable except if the parties' minor child should predecease the Plaintiff, at which time the right to change the designation of the beneficiary, after Plaintiff's death, shall again be vested in the Defendant. 6. The applicant and the FSM were divorced on 7 June 1991. The applicant provides a final decree, dated 7 June 1991, wherein it stated the Marital Dissolution Agreement the FSM and the applicant had previously entered into was incorporated into the final divorce decree. 7. The applicant provides a court order, dated 9 July 1991, which amended the final divorce decree by correcting a typographical error in the Marital Dissolution Agreement; however, this correction did not pertain to the applicant's SBP standing. 8. On 8 August 2014, by email, a Defense Finance and Accounting Service official verified that the FSM never changed his SBP to former spouse coverage. The election was not deemed within 1 year. He continued to pay SBP premiums for spouse and child. On 6 May 1993, his election was changed to spouse only and he continues to pay SBP premiums for spouse only to present. 9. It is unknown if, or when, the FSM remarried. 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. Children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school. A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student). 14. 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. 15. Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request to change her former spouse's SBP election from spouse to former spouse has been carefully considered. By law, any change to elect to provide an annuity to a former spouse requires the change to be made within 1 year of the date of divorce and the member must state whether it is being made voluntarily or pursuant to a court order. 2. The FSM did not change his election to his former spouse within 1 year of their divorce, and for the past 21 years he has continued to pay SBP premiums for spouse coverage. It is unclear whether his failure to update his SBP election resulted from his mistaken belief that his by-name designation of the applicant remained valid, or if it was because he had remarried. 3. It does not appear the FSM violated his court order by failing to change his SBP beneficiary election from spouse to former spouse. The Marital Dissolution Agreement he and the applicant signed, which was incorporated into their final divorce, only required him to name the applicant and/or their daughter as beneficiary of any survivor benefits and, as he maintained coverage for his child until 6 May 1993, he apparently did comply with the court order. 4. It is unclear why his SBP coverage changed in May 1993 when his child was 17 years of age; although, she would no longer be an eligible beneficiary if she had married at that time. 5. In view of the foregoing, there is insufficient evidence to grant the applicant the requested relief. 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) AR20130022154 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130022154 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1