BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014135 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 BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014135 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. BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014135 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, the former spouse of a former service member (FSM), requests correction of the FSM's records to show he elected to participate in the SBP and that she be named the beneficiary. 2. The applicant states she started the request for SBP enrollment in February 1993. 3. The applicant provides: * DD Form 2656-10 (SBP/Reserve Component SBP Request for Deemed Election) * divorce documents * DD Form 1172 (Application for Uniformed Service Identification Card) * nonconcurrence statement * letter from the 25th Infantry Division Retirement Services Office (RSO) CONSIDERATION OF EVIDENCE: 1. Title 10, United States 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. With prior service in the Army of the United States and the U.S. Army Reserve, the FSM enlisted in the Regular Army on 8 August 1972. Prior to his enlistment, he and the applicant were married on 14 August 1971. 3. He served through numerous reenlistments/extensions and was honorably retired on 28 February 1993 for length of service. During his separation processing, he completed a DD Form 4240 (Data for Payment of Retired Army Personnel) in which he elected SBP coverage for "spouse and dependent children" at a reduced rate. His spouse received written notification of his reduced election and she did not concur with his election on 18 February 1993. 4. The FSM and the applicant were divorced on 30 August 1993. SBP is not specifically mentioned in the divorce decree. The divorce decree states the applicant has the right to any and all benefits allowed by the Army as a result of their marriage exceeding 20 years. 5. She provides a letter from an RSO, dated 25 January 1996, which states the FSM was not enrolled in SBP. The RSO could not confirm what actually happened to his mandatory election because SBP files for 1993 were destroyed. Based on information in their logbook they surmised SBP coverage for the FSM's spouse was not properly processed or his SBP election and accompanying statements were changed prior to being processed. 6. There is no evidence the applicant requested a deemed election within 1 year of the divorce. She provides a DD Form 2656, dated 5 May 2015 deeming her election for SBP. 7. According to information maintained at the Defense Finance and Accounting Service (DFAS) the FSM's SBP coverage should have defaulted to full SBP coverage for "spouse and dependent children" since his spouse did not concur with his election; however, he was never enrolled in SBP and the applicant did not deem her election within 1 year of the divorce. REFERENCES: 1.  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. 2. Title 10, U.S. Code, section 1448, provides that if a person makes an election not to participate in the SBP, the person’s spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse. An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level. 3. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) 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. 4. Title 10, U.S. Code, section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouses Protection Act (USFSPA) relative to the SBP. It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit (emphasis added). 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. 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. DISCUSSION: 1. The FSM completed a DD Form 4240, dated 12 February 1993, in which he elected SBP coverage for "spouse and dependent children" at a reduced rate. In a written election statement his spouse did not concur with his election. 2. On 30 August 1993, the applicant and the FSM divorced. SBP is not specifically mentioned in the divorce decree. The divorce decree states the applicant has the right to any and all benefits allowed by the Army as a result of their marriage exceeding 20 years. 3. By law, the FSM's SBP coverage should have defaulted to full SBP coverage for "spouse and dependent children" at the time of his retirement because his spouse did not concur with his election. A review of his record shows he was never enrolled in SBP at the time of his retirement nor did the applicant make a deemed election within 1 year of their divorce. 4. A former spouse may request a deemed SBP election. There are two requirements for a deemed election to be valid. The first is that the divorce decree must clearly indicate that the former spouse is entitled to coverage under the SBP. The second is that the request for a deemed former spouse election must be received by the Secretary concerned within 1 year of the divorce. 5. As SBP elections are by category, not by name, a spouse loses eligibility upon divorce. There is no provision in the SBP program that makes former spouse SBP coverage an automatic benefit. As there was no specific award of SBP in the divorce decree, there was never an entitlement to former spouse coverage. Once the FSM and his former spouse were divorced, she was longer an eligible SBP beneficiary. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014135 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014135 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2