IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150011844 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150011844 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150011844 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: The applicant defers to counsel for submission of his request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's records to reflect his marital status as single, and to reflect the termination of his participation in the Survivor Benefit Plan (SBP). 2. Counsel states the applicant has been estranged from his wife since 1993. She is currently believed to be residing in Finland. The applicant suffered a stroke and is incapacitated. The applicant's application for Medicaid benefits has been started by his court-appointed Conservator and Guardian. The money that is being withheld on the behalf of the applicant's wife [for payment of SBP premiums] should be re-allocated to the applicant's long-term care needs as he is disabled and residing in a nursing facility. 3. Counsel provides a summary statement of the documents submitted on the applicant's behalf, dated 7 July 2015, and the following documents arranged chronologically: * Letters of Guardianship and Conservatorship, signed 8 September 2014 * VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance), dated 18 March 2015 * VA Form 21-527EZ (Application for Pension), dated 28 April 2015 * VA Form 21-4138 (Statement in Support of Claim), dated 28 April 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. Following prior periods of active and U.S. Army Reserve service, the applicant enlisted in the Regular Army on 27 March 1970. 3. The applicant retired on 31 March 1990 and was placed on the Retired List the following day. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 4 months, and 5 days of net active creditable service, with 9 years and 8 months of prior active service. 4. The applicant's Official Military Personnel File (OMPF) contains a copy of his DA Form 2A (Personnel Qualification Record – Part 1), prepared on 22 January 1990, which shows his marital status as "married." His OMPF is void of a DD Form 2656 (Data for Payment of Retired Personnel) that documents his SBP election at the time of his retirement. 5. In response to an agency inquiry, the Defense Finance and Accounting Service (DFAS) informed the Army Board for Correction of Military Records (ABCMR) that DFAS did not have any SBP documents on file for the applicant. 6. Through counsel, the applicant provides a letter of guardianship and conservatorship and Department of Veterans Affairs (VA) documents that support his incapacitation status. Counsel also provides a statement in support of claim, wherein the applicant's marital status is explained. According to the information detailed on this form, the applicant's marriage has not been formally terminated; however, the applicant and his spouse have been estranged since 1993. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law. 2. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage. 3. Title 10, U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10, USC, section 1448, which was amended effective 1 March 1986, required written concurrence by the spouse if a member decided to decline the SBP or elect spouse coverage at less than the full base amount. 4. Department of Defense Financial Management Regulation, volume 7B, chapter 43, provides guidance on SBP elections. This chapter states, in pertinent part, that effective 1 March 1986, a married member is enrolled with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. 5. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. DISCUSSION: 1. The applicant's request through counsel for change of his marital status and termination of his participation in the SBP was carefully considered. 2. It appears the applicant was married at the time of his retirement and still is. His OMPF is void of a DD Form 2656 and DFAS has no record of a completed DD Form 2656. However, it is unlikely this form was not completed prior to his retirement, since it serves more functions than just documenting a retiring Soldier's SBP election. The presence of this form would clarify the applicant's intentions with regard to his participation in the SBP. Regardless, based on the applicant's statement, it appears SBP premiums are being deducted from his monthly retired pay. 3. By law, members are provided the opportunity to terminate SBP participation during the one-year period between the second and third anniversary of the commencement of retired pay. It does not appear that the applicant exercised this option. 4. Although the applicant and his wife are estranged, he did not provide evidence that shows his spouse concurs with his desire to terminate his participation in the SBP. Regardless, there is no option for a member to voluntarily terminate his or her SBP participation while married. His election was an irrevocable election except under circumstances prescribed by law, such as a divorce. 5. The applicant did not provide evidence that shows his record is in error or an injustice occurred. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011844 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011844 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2