IN THE CASE OF: BOARD DATE: 20 April 2021 DOCKET NUMBER: AR20200000912 APPLICANT REQUESTS: the applicant, the former spouse of the Service Member (SM) requests correction of the SM's record to show she was deemed the Survivor Benefit Plan (SBP) beneficiary. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 June 1986 * Separation Agreement, dated 28 May 2003 * Memorandum of Modification of Agreement, dated 23 February 2005 * Second Memorandum of Modification of Agreement, dated 7 April 2005 * Amended Complaint – First Claim for Relief (Absolute Divorce), dated 7 April 2005 * Divorce Judgement, dated 2 May 2005 * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 4 September 2014 * DD Form 2656-6 (SBP Election Change Certificate), dated 31 December 2015 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She would like the SBP to be corrected to reflect "Former Spouse" coverage instead of "Spouse coverage." b. On 2 May 2005, she was granted a divorce and was awarded SBP for "Former Spouse" coverage. The SM did not notify the Defense Finance and Accounting Services (DFAS) as required to update his SBP election. c. The applicant was not aware of the former spouse deemed election statement that was required to be sent to DFAS within 1 year of divorce. d. The SM never remarried after their divorce. On 4 September 2014, both went to the Fort Bragg, NC, Retirement Services Office and submitted a DD Form 2656-1 to ensure his SBP reflected "Former Spouse." e. The SM continued the SBP premium payment until he met the paid up provision on 1 July 2016. f. The applicant was still listed as the beneficiary recipient for SBP on the SM's account but as his spouse and not the required "Former Spouse." 3. A review of the SM's official record shows: a. On 17 December 1974, the SM enlisted in the Regular Army and served continuously until his retirement. b. On 25 May 1976, the SM married the applicant. c. On 11 June 1986, the applicant was honorably retired from active duty He completed 24 years, 9 months, and 28 days of total active service. d. On 11 June 1986, a DA Form 4240 (Data for Payment of Retired Army Personnel) was completed showing under Part 3 (SBP Election), item 12 shows "Spouse Only," and item 13 shows full coverage. e. On 2 May 2005, the SM and applicant were divorced. 4. The applicant provides: a. Separation agreement showing the SM agreed to maintain SBP payments. b. Memorandum of Modification of Agreement showing the SM agreed under insurance he would provide proof to the applicant that SBP policy was in effect and she was listed as the beneficiary. c. Divorce decree showing the applicant and SM were granted a divorce on 2 May 2005, and entered into a separation agreement and property settlement was incorporated into the divorce decree. d. Second amendment of modification of agreement which is void of SBP requirements. e. Amended complaint absolute divorce which is void of SBP requirements. f. Divorce judgement showing the separation agreement and property settlement would be incorporated into the divorce decree. g. DD Form 2656-1 showing the SM and the applicant certified this form on 4 September 2014 to elect "Former Spouse" coverage. h. DD Form 2656-6 showing the SM changed his coverage from "Spouse Only" to suspended coverage due to divorce. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. 2. The Board considered the applicant’s statement, the FSM’s record of service and retirement, the SBP election, the applicant’s divorce and continuation of SBP premiums, the request for former spouse coverage and a form that indicates suspended coverage. The Board found that the divorce decree required the FSM to continue payments for SBP for the applicant. The Board found no evidence that the FSM had remarried. Based on a preponderance of evidence, the Board determined that a correction to the FSM’s record to reflect Former Spouse SBP coverage was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 to show that: - The FSM submitted a request to change his SBP election from Spouse to Former Spouse within one year of their 2 May 2005 divorce; - That his request was accepted and processed by the appropriate official, and; - That the applicant is shown as the Former Spouse beneficiary of the FSM’s SBP annuity. 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. REFERENCES: 1. Title 10, USC, 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 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. 2. 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 on active duty and had not yet made an SBP election. 3. Title 10, USC, section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title. 4. Title 10, USC, section 1450(f)(3)(A), permits a former spouse to make a written request that an Survivor Benefit Plan (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000912 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1