ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2021 DOCKET NUMBER: AR20210007823 APPLICANT REQUESTS: in effect, correction of his records to show he changed his Survivor Benefit Plan (SBP) beneficiary from his former spouse to his current spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Divorce Decree, 22 June 2011 * Two Amended Divorce Decrees, 3 February and 19 March 2012 * Certificate of Marriage, 28 September 2013 * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), 27 October 2014 * DD Form 2656-6 (SBP Election Change Certificate), 6 November 2019 * Retirement Services Officer, Joint Force Headquarters-Minnesota, Memorandum (SBP Status), 14 October 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 he was following the guidance in his divorce decree to maintain his former spouse as his SBP beneficiary until July 2019 and completed a DD Form 2656-1 naming his former spouse as the beneficiary. On 6 November 2019, he submitted DD Form 2656-6 to the Joint Force Headquarters-Minnesota Army National Guard to change his SBP beneficiary to his current spouse. He did not find out until 20 August 2020 that the process he was following in the divorce decree was not in accordance with the law that governs the SBP. He has been paying the SBP premiums since receiving retired pay and is currently making monthly payments with his former spouse as the beneficiary. 3. He married his former spouse on 15 June 1991. 4. His DA Form 4240 (Data for Payment of Retired Army Personnel), 16 April 1992, shows he designated his then-spouse as his SBP beneficiary. He elected spouse and dependent child SBP coverage based on full retired pay. 5. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on 30 April 1992. 6. The Defense Retiree and Annuitant Pay System shows the following information pertaining to the applicant: * 1 May 1992 - he elected spouse and child SBP coverage * 1 July 2007 - his coverage changed to spouse SBP * his beneficiary is his former spouse * he pays $107.96 a month and has made 351 payments * his divorce is not shown 7. He provided his divorce decree showing he was granted a divorce on 22 June 2011. The decree further states: If permitted by military pension, unless the Respondent elects to receive the cost of maintaining the military pension spousal survivor benefits ($69) as a direct payment to her, the Petitioner will be required to continue the Respondent as his surviving beneficiary of his military retirement plan until his death. After July 2019 payment by the Petitioner, the Petitioner will be required to make the payments to the Government, but the payments will cease to be considered to be spousal maintenance to Respondent. 8. His amended divorce decree, 3 February 2012, did not change the SBP agreement provided in his divorce decree, 22 June 2011. 9. His amended divorce decree, 19 March 2012, states his obligation to pay $69.00 for monthly SBP premiums would continue. 10. His marriage certificate, 28 September 2013, shows he married his current spouse on that date. 11. The DD Form 2656-1 shows he requested former spouse SBP coverage due to their divorce. His signature was witnessed on 21 January 2014 and his former spouse's signature was witnessed 27 October 2014. 12. The DD Form 2656-6 (SBP Election Change Certificate), 6 November 2019, shows the applicant requested to change his existing SBP beneficiary from his former spouse to his current spouse due to divorce and remarriage. 13. The memorandum from the Retirement Services Officer, Joint Force Headquarters- Minnesota (SBP Status), 14 October 2020, states that after reviewing the applicant's SBP coverage circumstances, by law his current coverage should be terminated without the option to change it in the future. a. His first marriage was on 15 June 1991 and he divorced on 22 June 2011. The divorce decree stated he must maintain SBP coverage for his former spouse. The applicant and his former spouse completed a DD Form 2656-1 for former spouse coverage. He signed the form on 21 January 2014 and his former spouse signed the form on 27 October 2014. This DD Form 2656-1 is not valid since it was not completed within 1 year of the divorce decree and any amendments. By law, SBP premiums are to be suspended. b. On 28 September 2013, the applicant married his current spouse. On 6 November 2019, he signed a DD Form 2656-6. This DD Form 2656-6 is not valid since it was not completed within 1 year of their marriage. By law, his SBP election should be closed to any future election changes. (Note: This conclusion is contrary to Department of Defense Instruction 1332.42, which provides that, if a covered participant previously participating in the program and who lost their spouse beneficiary by death or divorce does not make an election within 1 year of marrying a newly acquired spouse, coverage for the new spouse will automatically resume upon the first anniversary of the marriage.) BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. In accordance with the divorce decree, the applicant was supposed to elect former spouse SBP coverage. SBP premiums would be considered spousal maintenance for a portion of the time, however, he would maintain the former spouse until his death. While he attempted to elect former spouse coverage in 2014, this was over one year after the 2011 divorce and, as such, an invalid election. There is no evidence available that shows the former spouse attempted to deem an election within one-year of their divorce. While the applicant did not adhere to his obligation under the divorce decree, he has since remarried and been married in excess of one year. Absent a valid former spouse beneficiary designation, his current spouse is the rightful SBP beneficiary by law. To the extent that she is not viewed as such, that is an error warranting a correction by the Board. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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 he properly elected the Survivor Benefit Plan (SBP) with spousal coverage for his current spouse on 28 September 2013, and his election was received and processed in a timely manner by the appropriate DFAS office. 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, 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 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 97-252, the Uniformed Services Former Spouses Protection Act, enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 3. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to provide coverage. 4. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed 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 1 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 as part of a proceeding of divorce. 5. Department of Defense Instruction 1332.42 (SBP), effective 30 December 2020, establishes policy, assigns responsibilities, and provides procedures for administration of the SBP. a. Paragraph 4.4 (Making or Changing an Election after Retirement or Notification of Eligibility (NOE)): (1) Paragraph 4.4a(2) states once spouse coverage is established at retirement or at NOE, or in certain circumstances after retirement or NOE in accordance with this section, spouse coverage remains in effect unless changed by a specific provision of law that allows or requires such change. (2) Paragraph 4.4a(3) states a spouse becomes ineligible as a beneficiary and coverage is suspended upon divorce, dissolution, or annulment of marriage. Transition from spouse coverage to former spouse coverage is not automatic upon divorce, dissolution, or annulment. Former spouse coverage must be elected per section 5. A member who elects to provide former spouse coverage pursuant to a requirement contained in a court order or written agreement may not change or discontinue such coverage unless the applicable requirements of section 5 have been satisfied. Failure to elect former spouse coverage per a court order, written agreement, or voluntary agreement will result in suspended spouse coverage. (3) Paragraph 4.4b (Remarriage after Retirement or NOE when Spouse Coverage is Suspended) states a covered participant with spouse or spouse and child coverage who does not have a current eligible spouse beneficiary (i.e., elected to participate in SBP or Reserve Component SBP but whose previous beneficiary is no longer eligible for reasons described in paragraph 5a(2) may, within 1 year of remarriage to a new spouse: (a) default to resuming the same level of coverage in effect before remarriage; (b) elect not to provide coverage for the new spouse; or (c) elect to increase coverage upon remarriage. (4) Paragraph 4.4c (Remarriage Automatic Coverage) states a covered participant with a newly acquired spouse who does not make an election in accordance with paragraph 4.4b within 1 year immediately following remarriage, and who does not otherwise have an eligible former spouse beneficiary: (a) the new spouse will become an eligible beneficiary as though the member had made an election to resume the previously suspended coverage; and (b) the coverage for the new spouse will resume at the level in effect before the remarriage. b. Paragraph 5.2 (Changing from Spouse Coverage to Former Spouse Coverage after Retirement or NOE): (1) Paragraph 5.2a (Divorced after First Becoming Eligible to Participate SBP) states: (a) a member who elected spouse coverage upon becoming eligible to participate in the SBP or Reserve Component SBP, and later divorces, may elect to cover that former spouse (who was not the member's former spouse at the time the member became eligible to participate) within 1 year after the date of decree of divorce, dissolution, or annulment; (b) former spouse coverage is not automatic upon divorce, dissolution, or annulment. A court order alone does not create coverage; and (c) there is no option to change the level of coverage (i.e., base amount) for an election under this paragraph. (2) Paragraph 5.2c (Termination of Prior Coverage) states an election per paragraph 5b(1) terminates any previous coverage and may not be revoked unless otherwise provided by law. 6. The Defense Finance Accounting Service (DFAS) website states: Upon the finalization of a divorce, please inform us by supplying us with information about the effective date of the divorce and a copy of the divorce and all associated orders. A divorce's impact on SBP election depends not only on your wishes, but also on the requirements imposed by the court-ordered divorce decree. If your divorce decree contains no language mandating you to elect former spouse coverage, then you have complete freedom to either have the former spouse removed from the plan or to voluntarily continue the coverage. If you remove your former spouse from the plan, any premiums deducted beyond the date of divorce will be refunded. If you choose to voluntarily cover your former spouse under the plan, you have until 1 year after the date of divorce to do so. If your divorce decree requires you to cover your former spouse, either you or your former spouse must declare your intentions to claim former spouse SBP coverage in writing within 1 year of the date of divorce. Failing to update your SBP beneficiary could have financial consequences. Make sure DFAS is aware of any changes in your beneficiaries. If you do not inform DFAS of a divorce, you could forfeit a refund of overpaid premiums. DFAS is barred by law from refunding payments retroactively beyond a 6-year period. If a retiree divorces a spouse and does not notify DFAS until 10 years after the fact, they will only be able to refund 6 years of those payments. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007823 5 1