BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150007561 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 records to show he changed his Survivor Benefit Plan (SBP) election from "spouse" to "former spouse" upon his divorce from his former spouse, G___. He also requests a personal hearing. 2. The applicant states as stipulated in the Qualified Military Order (QMO) he provides, his former spouse would continue to be the beneficiary of his SBP. For unknown reasons, this item was not included in his final divorce decree. At the time of his divorce, he did not know about and was not advised of the requirement to change his SBP election since he had been paying for SBP for many years and had not envisioned a change of beneficiary. It had always been his intention that his spouse of 40 plus years should have his SBP. 3. The applicant provides a letter, divorce decree, and QMO. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a second lieutenant in the Regular Army on 8 June 1966. He and his former spouse were married on 14 September 1969. He served on active duty through a variety of assignments and attained the rank of lieutenant colonel (LTC) on 1 June 1982. 2. In conjunction with his upcoming retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 17 May 1988 wherein he indicated he was married to G___, had two dependent children (born on 27 November 1975 and 4 June 1980), neither child was mentally or physically incapacitated, and he was electing SBP for "spouse and children" in the full base amount. 3. He was honorably retired on 31 May 1988 in the rank of LTC and he was placed on the retired list on 1 June 1988. 4. The applicant provides a/an: a. Agreed Final Decree of Divorce, dated 25 October 2013, wherein it shows he and his spouse were granted a divorce on that date and had no dependent children at that time. This court order is silent on SBP. b. QMO, wherein it shows it was filed on 25 October 2013, signed on 29 October 2013, and stated, in part, the applicant shall elect SBP and designate and maintain SBP for G___ as a former spouse beneficiary of the SBP. c. Letter from the Defense Finance and Accounting Service (DFAS) to his former spouse, dated 22 November 2014, wherein it stated her attempt to deem an election of SBP for former spouse could not be processed because the application was received more than 1 year after the date of the court order she had sent. 5. In an email, dated 14 February 2016, the applicant stated he has remarried and his current spouse does not agree with the change in his SBP election (emphasis added). He further stated that he and his current spouse have discussed the matter and have decided his former spouse would be "better off" as a beneficiary on his life insurance policies rather than as the beneficiary of his SBP as directed by the Court. He did notify DFAS that he remarried and currently has SBP "spouse" coverage. He also provided a marriage certificate, dated 1 November 2014, wherein it shows he married his current spouse, Y_____, on that date. 6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 7. Children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school. A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full-time student). 8. Public Law 98-94, dated 24 September 1983, established SBP coverage for former military spouses of retired members. 9. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage for former spouses 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. 10. Title 10, U.S. Code, section 1448(b) (3) permitted 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. 11. Title 10, U.S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an 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. 12. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, at its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant contends his SBP election should be changed from "spouse" to "former spouse" as he was not aware of the 1-year requirement to change his election, though he believes such a change is not in his former spouse's best interest. 3. On 1 June 1988, he retired from active duty and elected SBP coverage for spouse and children. He and his former spouse, G___, were divorced on 25 October 2013. Their divorce decree was silent on SBP but a QMO dated 29 October 2013 stipulated he would name his former spouse, G___, as the beneficiary of his SBP and change his SBP election to former spouse. His former spouse subsequently deemed the former spouse SBP election; however, DFAS would not process the request as it was received more than 1 year after the date of the QMO. 4. The applicant remarried on 1 November 2014 and has SBP "spouse" coverage; his current spouse does not concur with his request to change his election. 5. Notwithstanding the applicant's sincerity that he was unaware of the 1-year requirement, the Board may not correct the applicant's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law. The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the applicant's current spouse concurring with his SBP election request or a court order from a state of competent jurisdiction wherein the current spouse was a party, divesting the current spouse of her interest in the SBP. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ _x_______ __x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150007561 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007561 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1