IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003266 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 the records of her former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) election to former spouse coverage. 2. The applicant states: a. She should be the SBP beneficiary as indicated in their divorce property settlement agreement. They married in August 1978 and she was the SBP beneficiary as his spouse. They divorced in February 1998. b. Their settlement agreement was initiated in April 1998 and finalized on 29 July 1999. The reason for the delay was their differing opinions on the items and values included in the property settlement agreement. As a result, she was not made the SBP former spouse beneficiary in time (within 1 year after their divorce). c. Their settlement agreement states the FSM will pay the monthly premium in order for her to receive a survivor benefit from the U.S. Government. She was assured by the FSM, his lawyer, her lawyer, the court, and the Army legal office that everything was taken care of and she didn't have to take any action with the Defense Finance and Accounting Service (DFAS). d. Unfortunately, she learned she is not and never was the former spouse SBP beneficiary as stipulated in their settlement agreement since the FSM's SBP election was never changed as it should have been. She discovered this a few months ago only by accident. 3. The applicant provides: * divorce decree * settlement agreement * DD Form 2656 (Data for Payment of Retired Personnel) * marriage certificate (in German) * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) 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 enlisted in the Regular Army on 21 April 1976. 3. He married the applicant on 3 August 1978. 4. His records contain a DD Form 2656, dated 29 April 1996, showing he elected spouse-only SBP coverage, full base amount. 5. He retired on 30 April 1996 in the rank of master sergeant. 6. He and the applicant divorced on 2 February 1998. Their property settlement agreement states the FSM is to provide SBP coverage for the applicant. 7. There is no evidence the FSM changed his election or the applicant made a deemed election to change his SBP election from spouse to former spouse coverage within 1 year of their divorce. 8. She provided a DD Form 2656-1, dated 2014, which shows: * the FSM is married (date of marriage unknown) * the FSM requested former spouse coverage 9. DFAS records indicate the FSM's account is in a "no beneficiary" status as of 3 February 1998. It appears the FSM's SBP is suspended and he did not notify DFAS of his remarriage. 10. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. 11. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted on 8 September 1982, established SBP coverage for former spouses of retiring members. 12. Public Law 98-94, enacted on 24 September 1983, established former spouse coverage for retired members. 13. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits 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. 14. 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 DD Form 2656-1 provided by the applicant showing the FSM requested former spouse coverage in 2014 was not executed within the statutory 1-year time frame. 2. Her contentions were carefully considered. However, SBP elections are made by category, not by name. As long as she was the FSM's spouse, she was the eligible SBP beneficiary under his election for spouse only coverage. She was no longer the beneficiary once they divorced. 3. There is no evidence showing the FSM requested to change his SBP election to former spouse coverage or that the applicant requested a deemed election within the statutory 1-year time frame from the date of their divorce. 4. There is, however, evidence showing the FSM remarried. Upon the 1-year anniversary of their marriage, his current spouse acquired a vested interest in the SBP as the FSM's legal beneficiary. 5. While not at all unsympathetic to the applicant's position, the law relating to the SBP is clear with regard to when and how former spouse coverage can be established. It is equally clear with respect to how and at what point a new spouse gains eligibility to take as the surviving spouse. In this case, former spouse coverage was never established; the initial election of spouse coverage remained in place. The spouse portion of his original election was simply dormant from the time the couple divorced until his remarriage plus 12 months. Divorce decree or not – equity or not – from that point forward the ABCMR lost the power to change the FSM's records in such a way as to divest the FSM's spouse of her statutorily-recognized interest in the SBP and establish former spouse coverage for the applicant because such action would be in violation of the FSM's spouse's due process rights. Accordingly, the only avenues of relief available to the applicant are to prevail upon her former husband's current spouse to voluntarily relinquish her interest or seek to have a court divest the FSM's spouse of her interest in the course of litigation. 6. In view of the foregoing information, the evidence presented is insufficient 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 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) AR20150003266 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003266 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1