IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003764 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, a former service member (FSM), requests correction of his records to show he made a valid Survivor Benefit Plan (SBP) election to change his coverage from spouse to former spouse coverage within one year of his divorce. 2. The applicant states: a. After his divorce, he intended for his former spouse to be covered by the SBP with his premiums that he paid each month. b. He supports his statement by his history of his continued payments for SBP premiums even after his divorce. c. It was his understanding that since the court ordered him to keep SBP coverage for his former spouse and he did not stop the premium payments, she therefore would continue to be covered. d. He has paid more than 265 payments toward SBP and over 85 payments were made after his divorce was finalized. e. His SBP account should be updated to show he has SBP coverage for his former spouse. f. In July 2007, following his divorce, he went into the Retirement Services Office (RSO) with his divorce papers and completed what he believed to be everything required to properly indicate his ex-wife as a former spouse. g. He never received anything that would indicate an error. His annual retirement statement showed he was paying SBP for spouse but he was not informed that it should have read former spouse. h. He has not remarried. 3. The applicant provides: * A self-authored letter * His divorce decree and agreement * A Defense Finance and Accounting Service (DFAS) letter * DD Form 2894 (Designation of Beneficiary Information) * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) dated 20 March 2014 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. On 30 September 1992, the FSM retired. He was married at that time and made an SBP election for “spouse only” coverage. 3. On 21 July 2007, the FSM and his spouse divorced. The divorce decree stated the wife shall remain as beneficiary for the FSM’s SBP. He shall not change either the beneficiary or the amount of coverage existing on the date of their separation. The FSM shall ensure that his wife is deemed as the beneficiary and will provide such documentation to the wife within six months of the final decree of the divorce. He shall ensure that the deemed election is provided to the Directorate of Retired Pay Operations at the DFAS office in Cleveland. 4. The FSM provided a letter to the Board stating that in July 2007, following his divorce, he went to the RSO with his enclosed divorce papers and completed what he believed to be everything required to properly indicate that his ex-wife as the former spouse for SBP coverage, pursuant to their divorce decree. He provided a copy of a DD Form 2656-1 to show he made a timely election from spouse to former spouse; however, the document is undated. In the letter, the FSM also stated that the RSO informed him that he would have to have his ex-wife come in and complete her information and then they would forward the form for action to DFAS. Therefore, he thought everything was done to change his SBP coverage from spouse to former spouse. 5. DFAS records show the FSM’s request to change SBP coverage was denied. They state they did not receive a copy of the divorce decree back in 2007 that gave SBP coverage to the former spouse. Therefore, the change was never made. Furthermore, now that the former spouse has remarried, they cannot implement SBP coverage. In addition, they note the request to change the SBP election from spouse to former spouse has expired. 6. DFAS records further show the FSM’s SBP coverage was never suspended after his divorce and he remained in SBP under spouse category of coverage. The FSM has continued paid for SBP coverage for “spouse” to date. 7. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniform Services Former Spouses Protection Act 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 one 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 or as part of a proceeding of divorce. 8. 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 one year of the date of the court order or filing involved. DISCUSSION AND CONCLUSIONS: 1. The applicant is requesting correction of his record to show he made a timely request to change his SBP election from spouse to former spouse, pursuant to his divorce decree within one year of his divorce. The applicant's argument is logical and is supported by the divorce decree he provides and the fact that he continued paying SBP premiums with no beneficiary other than his ex-wife. 2. Since the FSM has not remarried and has paid SBP premiums from the date of his election to present, the only barrier to naming his former spouse as his SBP beneficiary is the fact that he did not submit his election within 1 year of his divorce. In light of the available evidence, it would be appropriate to correct his records to show he elected former spouse SBP coverage 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 FSM submitted a timely written request and submitted the DD Form 2656-1 on 22 July 2007 to DFAS, requesting to change his SBP election from spouse to former spouse pursuant to his divorce decree dated 21 July 2007. ___________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) AR20110016459 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003764 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1