IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015245 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015245 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. IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015245 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 former service member (FSM), requests correction of her former spouse's records to show he made a former spouse Survivor Benefit Plan (SBP) election. 2. The applicant states: a. On 10 January 2006, the FSM wrote a letter addressed to the Defense Finance and Accounting Service (DFAS), Military Retirement Pay, wherein he requested a change of his SBP beneficiary. The change he made removed the applicant and designated his current spouse as the new beneficiary. b. On 1 June 2015, during a phone conversation with the FSM, she asked if they had finished paying for the SBP. He told her the SBP was paid for and he had changed the beneficiary. He also stated that it was the Army's responsibility to inform her of the change. c. Within a few days of the conversation, she contacted the Retirement Services Officer (RSO) at Aberdeen Proving Ground, Maryland. The RSO provided her archival documents including letters from the FSM, dated 10 January and 21 March 2006, and internal military records from the SBP. The RSO explained to her that the FSM should have informed her of the change within a year of making it. d. On 29 September 1988, she and the FSM made a Voluntary Separation and Property Settlement Agreement. In item eight (Life Insurance), the FSM agreed to maintain in full force and effect a life insurance policy on his life in such an amount that may be purchased through the utilization of five percent of his retirement income. It was provided that he would make an immediate inquiry into what coverage would be available on his life in this amount. e. The Voluntary Separation and Property Settlement Agreement provided that she would remain as irrevocable beneficiary on the policy. Subsequently, in April 1993, they agreed that the FSM would enroll in the SBP in lieu of obtaining the previously agreed upon life insurance policy. He did so naming her as his beneficiary. Approximately 13 years later, the FSM violated their agreement and changed the beneficiary of his SBP to his current spouse. The FSM never obtained the life insurance policy discussed in the Voluntary Separation and Property Settlement Agreement due to their agreement regarding the SBP. 3. The applicant provides: * Voluntary Separation and Property Settlement Agreement * Judgement of Absolute Divorce * two letter from the FSM to DFAS, dated 10 January and 21 March 2006 * FSM's Marriage License, issued on 20 January 1998 * FSM's Marriage Certificate, issued on 31 January 1998 * letter from the FSM to the applicant, dated 19 November 2011 * DFAS pay documents 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 24 June 1960. He and the applicant married on 18 November 1962. 3. The FSM retired on 30 June 1980. On the same date, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he indicated that he was married to R.J.D. (the applicant). Part IV (SBP Election) shows he declined SBP coverage. Part IX (SBP Certificates (Required when married member does not elect full coverage for spouse)) shows his spouse acknowledged she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and that she understood the decision which had been made and was reflected on the reverse side of the SBP Certificate. Part IX was signed by the applicant and a counselor from the Retired Services Office. 4. On 29 September 1988, the applicant and the FSM completed a Voluntary Separation and Property Settlement Agreement. Item eight (Life Insurance) of the agreement includes the following statement: "The husband does agree to maintain in full force and effect a life insurance policy on his life in such an amount which may be purchased through the utilization of five percent of his retirement income. The husband shall make an immediate inquiry as to what the coverage would be available on his life in said amount. The wife shall remain as irrevocable beneficiary on the policy to be taken based on the above proportion of his retirement income." The agreement does not include provisions pertaining to the SBP. 5. The applicant and the FSM divorced on 26 February 1990. The Judgement of Absolute Divorce includes the following: "It is further ordered that the Voluntary Separation and Property Settlement Agreement of the parties dated September 29, 1988 be approved, and all pertinent provisions contained therein be and they are hereby made part hereof as if fully set forth herein." 6. Information obtained from DFAS confirms the FSM made a voluntary "open season" SBP election for "former spouse" on 1 April 1993. 7. The FSM married M.A.D. (his current spouse) on 31 January 1998. 8. Information obtained from DFAS also confirms the FSM changed his SBP election from "former spouse" to "spouse" during an open season in 2006. REFERENCES: 1. Public Law-425, the SBP, enacted 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. Retiring members and spouses were to be informed of the SBP options and effects. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Title 10, U.S. Code, Chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment. 3. Title 10, U.S. Code, section 1450, paragraph (f) (Change in Election of Insurable Interest or Former Spouse Beneficiary) provides that: a. Election in favor or spouse or child. A person who elects to provide an annuity to a person designated by him under section 1448(b) of this title may change that election and provide an annuity to his spouse or dependent child. b. Notice. The Secretary concerned shall notify the former spouse or other natural person previously designated under section 1448(b) of this title of any change of election. c. Procedures, effective date, etc. Any such change of election is subject to the same rules with respect to execution, revocation, and effectiveness as are set forth in section 1448(a)(5) of this title (without regard to the eligibility of the person making the change of election to make such an election under that section). Notwithstanding the preceding sentence, a change of election under this subsection to provide an annuity to a spouse instead of a former spouse may be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(B) of this title. DISCUSSION: 1. The applicant contends the FSM's records should be corrected to show he elected to participate in the SBP for former spouse coverage. 2. The evidence of record shows the FSM declined SBP coverage in 1980 and that the applicant concurred with his SBP election. The FSM and the applicant executed a Voluntary Separation and Property Settlement Agreement in 1988 which did not address the SBP. They divorced in 1990 and the Judgement of Absolute Divorce did not address the SBP. Any subsequent agreement between the parties does not appear to have been reduced to writing. Accordingly, in 1993, the FSM made an apparently voluntary SBP election for former spouse. 3. The FSM remarried in 1998. In 2006, he changed his SBP election from former spouse to spouse. 4. The law provides that a spouse loses status as an SBP beneficiary upon divorce unless the service member voluntarily elects to provide a former spouse annuity or the election is made in order to comply with a court order, or the election is made to comply with a voluntary written agreement related to a divorce. 5. Based on the fact that the separation and divorce documents did not address the SBP, the FSM was permitted by law to change his SBP beneficiary from former spouse to spouse any time after he remarried in 1998. 6. Based on the foregoing, it appears the FSM's change in his SBP beneficiary was accomplished in accordance with the law. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015245 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015245 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2