BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002274 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 BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002274 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002274 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 added his spouse to his Survivor Benefit Plan (SBP). 2. The applicant states that he divorced his first spouse (Arkisha La-Toya A___) on 20 November 2008. He retired from active duty on 31 July 2012. At that time, he was automatically (AUTO) enrolled in the SBP with spouse and children coverage, even though he did not have a spouse and he was not eligible for the coverage. a. He states that he has been paying SBP premiums from the date of his retirement (1 August 2012). He did not realize he was paying into the SBP until about 3 or 4 months later when he initiated the process to remove his former spouse from his SBP. He was successful in accomplishing this in October 2015. b. On 3 May 2013, he married Kathryn Eulean A____ and sought assistance regarding the SBP from representatives of Veterans Service Organizations. They referred him to several websites, but none of them was an official website for SBP. He then went to a Retirement Services Office (RSO) at Joint Base Lewis McChord (JBLM) on 14 October 2015. The RSO assisted him with completing the correct forms and submitting them to the Defense Finance Accounting Service (DFAS). DFAS changed his original "AUTO" SBP to children only. However, DFAS disapproved his request to add his spouse to his SBP because the request was made more than 1 year from the date of marriage. c. He states that he has paid SBP premiums ($156.32 per month) for spouse and children coverage since he retired. However, he should not have been paying for spouse coverage because he was not married. He adds that he is not requesting a refund of any back-payments for overpayment, he simply wants to have his records corrected to authorize SBP coverage for his spouse (with children). 3. The applicant provides copies of – * a self-authored statement (summarized above) * decree of annulment * marriage license * two DD Forms 2656-6 (SBP Election Change Certificates) * DFAS letter, dated 11December 2015 * SBP Information printout CONSIDERATION OF EVIDENCE: 1. The applicant was born in August 1971. He enlisted in the Regular Army on 7 March 1990. He served continuously and was promoted to sergeant first class/pay grade E-7 on 1 October 2008. 2. A DD Form 2656 (Data for Payment of Retired Personnel), completed by the applicant on 10 May 2012 in preparation for his retirement, shows in: * section VIII (Dependency Information) – * item 22 (Spouse), he listed Arkisha A____ with a date of marriage of 13 November 2007 * item 25 (Dependent Children), the names of four dependent children (with birth years ranging from 1995 to 2006) * Section IX (SBP Election) – * item 26 (Beneficiary Categories): "I Elect Coverage for Spouse and Child(ren)" * item 27 (Level of Coverage): "I Elect Coverage Based on Full Gross Pay" * section XI (Certification) – * item 30 (Member), he signed the form on 10 May 2012 * item 31 (Witness), a witness (RSO, Fort Bragg, NC) also signed the form on 10 May 2012 * section XII (SBP Spouse Concurrence), item 32 (Spouse) and item 33 (Notary Witness) are blank (i.e., no entries) 3. The applicant was honorably retired from active duty on 31 July 2012 for sufficient length of service and transferred to the U.S. Army Reserve Control Group (Retired) effective 1 August 2012. He had completed 22 years, 4 months, and 24 days of total active service. 4. In support of his application the applicant provides the following documents. a. State of Georgia, Superior Court of Cobb County, Final Decree of Annulment, that shows Arkisha La-Toya A___ and the applicant were issued a marriage license on 13 November 2007, they were married, the applicant deployed to Iraq on 17 November 2007, and the parties had not cohabited. It also shows there were no children born during the marriage and no property accumulated during the marriage. The Final Decree of Annulment declared the marriage null and void on 20 November 2008. A further review of the available documents failed to reveal any reference to the applicant's SBP. b. State of Washington, County of Pierce, Marriage License, that shows the applicant and Kathryn Eulean J___ married on 30 April 2013. c. A DD Form 2656-6, completed by the applicant, that shows in: * section II (Current Coverage), item 7 (My current coverage is): "Spouse and Child" * section III (Conditions That Trigger Eligibility to Change Coverage), item 8 (I am requesting a change in coverage based on): "Divorce" * section IV (Requested Change to Coverage), item 9 (Place an X in the appropriate box to indicate your election): "Child(ren) Only" * section V (Level of Coverage), item 10, "Full Retired Pay" * section VI (Spouse and Child(ren) Information) – * item 11 (Spouse) is blank (i.e., no entries) * item 13 (Dependent Children), the names of four dependent children (with birth years ranging from 1992 to 2002) * section VII (Member Signature) – * item 14 (Member), he signed the form on 14 October 2015 * item 16 (Witness), a witness (at JBLM, WA) signed the form on 14 October 2015 d. A DD Form 2656-6, completed by the applicant, that shows in: * section II (Current Coverage), item 7 (My current coverage is): "Child Only" * section III (Conditions That Trigger Eligibility to Change Coverage), item 8 (I am requesting a change in coverage based on): "Remarriage" (Resume existing level of coverage for my new spouse) * section IV (Requested Change to Coverage), item 9 (Place an X in the appropriate box to indicate your election): "Spouse and Child(ren)" * section V (Level of Coverage), item 10, "Full Retired Pay" * section VI (Spouse and Child(ren) Information) – * item 11 (Spouse): "A__, Kathryn E (Date of Marriage: 3 May 2013) * item 13 (Dependent Children), the names of four dependent children (with birth years ranging from 1992 to 2002) * Section VII (Member Signature) – * item 14 (Member), he signed the form on 14 October 2015 * item 16 (Witness), a witness (at JBLM, WA) signed the form on 14 October 2015 e. DFAS, Retired and Annuitant Pay, London, KY, letter, dated 11 December 2015, that notified the applicant DFAS received his request (dated 14 October 2015), but was unable to add is spouse to his SBP because he would have had to have notified DFAS prior to their first year anniversary in order for his spouse to have been eligible. He was advised that, occasionally, Congress approves an Open Season enrollment period that allows retirees to add spouse coverage to their SBP. f. SPB Information printout pertaining to the applicant, dated 28 December 2015, showing current SBP coverage and costs, costs for adding spouse, and the following – * Original Election: Auto, 1 August 2012 * Current Election: Child, 1 August 2012 * Spouse: Excluded * Costs – * Spouse: $153.01 * Child: $3.06 * Current Cost: $3.06 5. In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation. A DFAS official provided copies of documents previously summarized in this Record of Proceedings (i.e., final decree of annulment, DD Form 2656, marriage license, and two DD Form 2656-6). The following additional documents were also provided: a. Washington State, County of Pierce, Certificate of Marriage, showing Kathryn Eulean J___ and the applicant married on 3 May 2013. b. Two DFAS memoranda to the applicant, dated 27 October 2015. (1) The first memorandum contains the same information as the DFAS memorandum, dated 11 December 2015 (previously summarized). (2) The second memorandum notified the applicant of his right to file an appeal of the DFAS SBP determination to the Defense Office of Hearing and Appeals within 30 days of the date of the letter. 6. On 1 August 2017, an official from the Case Management Division, Army Review Boards Agency, sent a message to the applicant (to the email address he provided with his application) requesting copies of his DFAS Retiree Account Statements to verify payment of SBP premiums. A response was not received from the applicant. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and established the SBP. The SBP provides 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 for former military spouses. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so choose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the retiree by virtue of the retiree's residence in the state (other than pursuant to military orders), domicile in the State, or consent. 3. 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: a. if the service member voluntarily elects to provide a former spouse annuity; b. the election is made in order to comply with a court order; or c. 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. 4. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to show he timely added SBP spouse coverage to his automatic child coverage. 2. The applicant entered active duty on 7 March 1990. a. He married Arkisha La-Toya A___ on 13 November 2007. Their marriage was annulled on 20 November 2008. b. There is no evidence of record showing the court awarded Arkisha La-Toya A___ an interest in the applicant's SBP. There is also no evidence regarding the terms of his divorce, and if he was previously married and divorced from the mother of two of his children. It is unknown why the applicant refers to Arkisha La-Toya A___ as his "first" spouse. c. The applicant completed 20 years of active duty service on 6 March 2010. At that time, he became eligible for the SBP (i.e., automatically enrolled). 3. On 10 May 2012, the applicant completed a DD Form 2656 and, for reasons that are not clear, he enrolled in the SBP with spouse (Arkisha A____; date of marriage, 13 November 2007) and children (full) coverage. 4. He retired from active duty on 31 July 2012. a. The applicant married Kathryn Eulean (J___) A___ on 30 April 2013. b. The SBP Information printout the applicant provided shows he is currently enrolled in SBP with child only coverage (effective 1 August 2012) and that spouse coverage was excluded. c. On 14 October 2015, the applicant submitted a request to DFAS to change his SBP election from child only coverage to spouse and child coverage. DFAS denied his request because it was not submitted within the first year anniversary of the date of the marriage in order for his spouse to be eligible to be added to his SBP. 5. There is no evidence of record that shows the applicant appealed the DFAS determination pertaining to his request to add his spouse to his SBP coverage. 6. The applicant failed to provide evidence (e.g., DFAS Retiree Account Statements) to support his claim that he paid SBP premiums for spouse coverage from the effective date of his retirement (i.e., 1 August 2012). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002274 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002274 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2