IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150006120 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 the records of her deceased former spouse, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage in a timely manner. 2. The applicant states: a. The executor of the FSM's military affairs passed on 2 April 2014. Her granddaughter works for the Missouri Army National Guard (ARNG) and mentioned she might be eligible for SBP benefits. She is 100-percent disabled and this benefit would help her. b. The Defense Finance and Accounting Service (DFAS) was contacted and that office indicated the statute of limitations (6 years) had lapsed to request the SBP annuity. She was unaware of the 6-year statute of limitations or that she had any rights to file for the SBP. 3. The applicant provides: * FSM's service personnel records * DD Form 1883 (SBP Election Certificate) * FSM's birth certificate and death certificate * marriage license * divorce decree * application for widow's or widower's insurance benefits * letter from DFAS, dated 28 May 2015 * letter from DFAS to a Member of Congress, dated 28 May 2015 * letter from the Office of the Chief of Legislative Liaison to a Member of Congress, dated 13 May 2015 * letter from a Member of Congress, dated 5 May 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 FSM was born on 5 April 1943. He married the applicant on 13 February 1973. 3. Having prior active service in the Regular Army, the FSM enlisted in the ARNG on 6 June 1974. 4. His records contain a DD Form 1883, dated 10 November 1986, showing he elected spouse and children SBP coverage, full base amount. 5. On 28 June 1989, he was honorably discharged from the ARNG in the rank of staff sergeant. 6. He and the applicant divorced on 9 November 1999. 7. There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse within 1 year of their divorce. 8. On 5 April 2003, he was retired and placed on the Retired List. 9. DFAS records show he made a former spouse election on 5 April 2003. 10. The FSM died on 13 December 2003. His death certificate shows his marital status as divorced. 11. The applicant provided a letter from DFAS to a Member of Congress, dated 28 May 2015, which states, in part: a. The FSM elected to participate in the SBP and the applicant is his eligible SBP beneficiary. b. The applicant's claim for the SBP annuity was received in February 2015. c. Unfortunately, her claim was not received within 6 years from the date of the FSM's death; therefore, it is barred by the Barring Act of 1940. Based on Title 31, U.S. Code, section 3702, commonly referred to as the statute of limitations, any claim against the U.S. Government must be made within 6 years from the date the claim accrues. Due to the statute of limitations, that office is not able to process the entitlement to the applicant. d. Waiving of the Barring Act is determined by the branch of service. 12. 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. Elections are made by category, not by name. 13. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 14. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members. 15. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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. 16. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the U.S. Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. DISCUSSION AND CONCLUSIONS: Although there is no evidence showing the FSM requested changing his SBP spouse coverage to former spouse coverage within the statutory 1-year time limit, he did make a former spouse election in 2003. It appears it was the FSM's intention to provide the SBP annuity to the applicant. It would therefore be equitable to correct his records to show he requested to change his SBP coverage to former spouse coverage in a timely manner. BOARD VOTE: ____X___ ____X___ ____X___ 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 by: a. showing the FSM made a written request to change his SBP spouse coverage to former spouse coverage on 1 December 1999 and the request was accepted and processed by the appropriate office in a timely manner and b. showing the applicant filed a claim for SBP on 14 December 2003 and paying the applicant the SBP annuity effective that day. _______ _ _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) AR20150006120 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006120 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1