IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150001473 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 military records to show his current spouse as the eligible beneficiary of his Survivor Benefit Plan (SBP), but with a higher annuity basis because she is 100 percent disabled. 2. The applicant states his previous wife, who was covered under SBP, passed away in October 2010. The original death certificate was forwarded by the executor but had an error in the social security number. A duplicate certificate was requested but did not become available until January 2011. At that time, he requested his current wife be added as his SBP beneficiary, with an increase in the amount of coverage. His wife and he are disabled and are taking extremely strong pain medication. He has had multiple surgeries. The narcotics he takes do impact his memory and judgment. As a result, it is possible that the forms he completed were not correct, but he does not think so. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Marriage License, State of Georgia, issued 5 May 1995 * Death Certificate for former spouse, issued 17 November 2011 * Letter from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 8 November 2013 * Letter from the applicant to DFAS, dated 15 December 2014 * Sales Receipt for first-class mail and tracking, dated 16 December 2014 * Letter from the applicant to the Army Review Boards Agency, dated 9 January 2015 * A DD Form 2656-6 (SBP Election Change Certificate), dated 2 November 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 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 applicant entered the Regular Army as a commissioned officer on 13 November 1965. He was promoted through the ranks to colonel, pay grade O-6. 3. A DA Form 4240 (Data for Payment of Retired Army Personnel), dated 19 December 1990, shows the applicant elected SBP coverage for his then spouse (who is now his previous spouse, deceased) and eligible children based on a reduced amount of $363.00. She concurred with his SBP election and signed the form on the same day. 4. On 31 January 1991, the applicant retired due to sufficient length of military service. 5. On 5 May 1995, the applicant was divorced from his previous spouse. The final judgment and decree by the court states that the applicant had elected SBP coverage and that payment for continuing SBP coverage was to be the responsibility of the previous spouse, paid out of her share of the applicant’s retired pay. 6. The marriage license, as provided by the applicant and contained in DFAS records, shows that the applicant was married to his current spouse on 6 May 1995. 7. A letter from DFAS, dated 19 November 1997, informed the applicant’s previous spouse that her request to be designated as a former spouse beneficiary for the applicant’s SBP was denied. It advised her that her deemed election for SBP coverage had to be submitted within 1 year of her divorce. 8. A letter dated 16 June 1998, from the previous spouse’s legal counsel to DFAS, referenced the letter discussed in the preceding paragraph and stated his understanding that the applicant’s previous spouse had made a deemed election for SBP within the time required. This was the second time an attorney had to become involved with the matter of her SBP deemed election. 9. A Certificate of Death, issued in the state of Texas on 17 November 2011, reports that the applicant’s previous spouse died on 24 October 2010. 10. A DD Form 2656-6, dated 7 October 2013, as provided by DFAS, shows the applicant indicated that his current SBP coverage was suspended. He further stated that he wanted to increase the existing level of SBP coverage for spouse only based on $1,000.00. He identified his current spouse as the beneficiary for his SBP. 11. In a letter dated 8 November 2013, a DFAS Military Pay Technician informed the applicant that the laws governing SBP state that an election for former spouse coverage terminates any prior coverage held. 12. In a letter from the applicant to DFAS, dated 15 December 2014, as provided by the applicant, he refers to the letter discussed in the preceding paragraph. He stated that the original death certificate for his previous spouse had an error on it and it was 3 months before he received a corrected copy. He submitted a copy of the correct death certificate to DFAS in January 2011. He further stated that his letter dated in October 2013 was a follow-up to letters and telephone calls to get the records correct and to have his current spouse added as beneficiary to his SBP. He also wanted the SBP benefits increased based on $2,000.00 for his current spouse because she was 100 percent disabled. 13. A DD Form 2656-6, dated 2 November 2015, as provided by the applicant, shows the applicant indicated that his current SBP coverage was for spouse only. He further stated that he wanted to increase the existing level of SBP coverage for spouse only based on $1,000.00. He identified his current spouse as the beneficiary for his SBP. 14. 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. 15. Title 10, U. S. Code (10 USC), section 1448(b)(2) permits a person, incident to a proceeding of divorce, to elect to provide an annuity to a former spouse if required by court order to do so. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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. 16. The National Defense Authorization Act (NDAA) for FY 2016, amended 10 USC, section 641 as pertains to the death of former spouse beneficiaries and subsequent remarriages under the SBP (Plan). a. The NDAA stated, in essence, that general section 1448(b) of 10 USC is amended to provide that if a person’s participation in the Plan is discontinued by reason of the death of a former spouse beneficiary, the person may elect to resume participation in the Plan and to elect a new spouse beneficiary when that person is married on the date of death of the former spouse. A person who is married at the time of the death of the former spouse beneficiary may elect to provide coverage to that person’s spouse. Such an election must be received by the Secretary concerned within 1 year after the date of death of the former spouse beneficiary. b. The NDAA enactment provides that a person who before the date of the enactment of this Act had a former spouse beneficiary under the Plan who died before that date; and who on the date of the enactment of this Act is married, may elect to provide spouse coverage for such spouse under the Plan, regardless of whether the person married such spouse before or after the death of the former spouse beneficiary. Any such election may only be made during the 1-year period beginning on the date of the enactment of this Act. c. If the person providing the annuity was married to the spouse beneficiary for at least 1 year at the time of the death of the former spouse beneficiary, the effective date of such election shall be the first day of the month after the death of the former spouse beneficiary. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected to show his current spouse as an eligible beneficiary of his SBP; but with a higher annuity basis because she is 100 percent disabled. 2. The available evidence shows that the applicant was married at the time of his retirement from the military and had designated his spouse and children at the time as beneficiaries for his SBP based on a reduced annuity of $363.00. They were divorced on 5 May 1995. The court ordered the applicant to provide his previous spouse SBP coverage with payment from her portion of his retirement pay. The evidence indicates that there was some difficulty in establishing her beneficiary status for SBP. It is presumed that the previous spouse eventually did prevail. 3. The available evidence shows that the applicant remarried on 6 May 1995. Subsequently, his previous spouse died in October 2010. The applicant contends that he submitted a request in January 2011 to make his current spouse the beneficiary of his SBP. Unfortunately, there is no documentary evidence of this action. The earliest documentary evidence of any such action is a DD Form 2656-6, dated 7 October 2013, wherein the applicant states his SBP coverage was suspended and he wanted to make his current spouse his beneficiary. He also requested to increase the basis for coverage to $1,000.00. 4. The evidence further shows that DFAS informed the applicant in November 2013 that an election for former spouse coverage terminated any prior coverage held. Accordingly, he could not now claim that his SBP coverage was only suspended and have it restarted to give coverage to his current spouse. At the time, a change in coverage from spouse and children to former spouse was an irrevocable action. 5. However, the 2016 NDAA has changed the law as it pertains in this case. The law now provides that a person who before the date of the enactment of this Act had a former spouse beneficiary under the SBP who died before that date, and who on the date of the enactment of this Act is married, may elect to provide spouse coverage for such spouse under the Plan, regardless of whether the person married such spouse before or after the death of the former spouse beneficiary. Any such election may only be made during the 1-year period beginning on the date of the enactment of this Act. If the person providing the annuity was married to the spouse beneficiary for at least 1 year at the time of the death of the former spouse beneficiary, the effective date of such election shall be the first day of the month after the death of the former spouse beneficiary. In view of this change in law, the applicant’s request to show his current spouse as his SBP beneficiary should be granted. 6. The change in law makes no provision for changing the annuity basis for a previous election. Therefore, this portion of the applicant’s request should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the applicant submitted an election within 1 year of the 2016 NDAA requesting to change his SBP election from former spouse to spouse; and b. showing that such election was received and processed by DFAS accordingly. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to increasing the SBP base amount for spouse coverage. _______ _ 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. ABCMR Record of Proceedings (cont) AR20070016793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001473 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1