BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002324 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: 14 September 2017 DOCKET NUMBER: AR20160002324 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: 14 September 2017 DOCKET NUMBER: AR20160002324 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 deceased former service member (FSM), requests correction of the FSM's records to show he elected to provide a Survivor Benefit Plan (SBP) annuity to his spouse at the time of his retirement, and to show he made a timely election to change his SBP election from "spouse" to "former spouse" within 1 year of the date of his divorce. 2. The applicant states, in effect, automatic SBP coverage should have been established as of the FSM's retirement date. When he retired on 30 June 1986, he indicated he had no dependents; however, they were married on 5 May 1962 and did not divorce until 17 November 2004. 3. The applicant provides: * State of North Carolina, Wayne County, License and Certificate of Marriage, dated 5 May 1962 * North Carolina, Wayne County General Court of Justice Amended Judgement of Absolute Divorce, dated 14 June 2010 * State of North Carolina, Wayne County, Certificate of Death, dated 23 February 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 and the applicant were married on 5 May 1962. 3. The FSM enlisted in the Regular Army on 27 June 1966. 4. The FSM acknowledged he received information on the SBP elections available to him on his retirement and the effects of the elections. He also acknowledged that the election he made before his retirement was, in general, a permanent and irrevocable decision. He then made an SBP election on 5 May 1986, wherein he declined SBP coverage for his spouse and children. The applicant concurred with his election by signing the form in the presence of a witness. 5. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on 30 June 1986. 6. The Defense Finance Accounting and Service (DFAS) has no record showing the FSM elected SBP coverage during an SBP open season. 7. The FSM and the applicant were divorced on 17November 2004. The divorce decree does not mention SBP coverage. 8. The applicant passed away on 11 February 2015. His State of North Carolina, Wayne County, Certificate of Death, dated 23 February 2015, shows he was married to Mrs. H_W_ (not the applicant) at his time of death. The FSM's date of marriage to Mrs. H_ W_ is not known. REFERENCES: 1. Public Law 92-425, 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. 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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 3. 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 serving on active duty and had not yet made an SBP election. 4. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted from 1 October 2005 through 30 September 2006. The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes, the Army's retirement newsletter. 5. The normal method for paying for SBP coverage is by an automatic deduction from the retiree’s retired pay account established on the date of retirement. DISCUSSION: 1. The applicant requests correction of her ex-husband's record to show he elected to provide an SBP annuity to her at the time of his retirement, and to show he made a timely election to change his SBP election from "spouse" to "former spouse" coverage within 1 year of the date of his divorce. 2. The evidence of record shows the FSM and the applicant declined SBP coverage prior to his retirement date. There is no evidence the FSM later elected SBP coverage via an open season, and their divorce decree does not show the FSM was ordered to provide SBP coverage. DFAS confirmed neither the FSM nor the applicant paid monthly premium costs for the SBP. 3. In accordance with applicable governing laws, the spouse is required to concur when the service member declines coverage; the applicant did so. Accordingly, there was no SBP to be awarded at the time of divorce. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002324 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2