BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015739 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015739 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: * showing he elected spousal SBP coverage for his current spouse, C____ A____, and removed his former spouse, D____ E____, as beneficiary * showing this election was timely received and processed ____________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: 2 February 2017 DOCKET NUMBER: AR20150015739 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 the beneficiary of his Survivor Benefit Plan (SBP) election to his current spouse, C____ A____, and removed his former spouse, D____ E____, as beneficiary. 2. The applicant states his divorce decree does not include an SBP mandate. 3. The applicant provides: * divorce decree, to include court orders and addenda * marriage certificate * DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) * Defense Finance and Accounting Service (DFAS) fact sheet pertaining to the SBP 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 enlisted in the Regular Army on 23 March 1976. He retired on 30 June 1995 and he was placed on the Retired List on 1 July 1995. 3. A DD Form 2656 (SBP Election), dated 10 March 1995, shows he elected spouse-only coverage for his wife, D____ E____, based on his full gross retired pay. 4. He provided a copy of a divorce decree and accompanying court orders, which show his divorce from D____ E____ was effective 23 October 2007. While these documents speak to the division of property, debt, and retirement benefits, to include applicant's retired pay and Thrift Savings Plan, they do not specifically address SBP. 5. DFAS records contain a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 11 February 2009, showing he elected to change his SBP coverage from spouse to former spouse as a result of his divorce. According to documentation provided by DFAS, he did not received his final divorce papers until 10 February 2009 and was not aware that his divorce was effective 23 October 2007. Along with the DD Form 2656-1 is a letter from his former spouse, D____ E____, requesting a deemed former spouse election. DFAS confirmed the voluntary former spouse election was honored. 6. A State of Nevada marriage certificate shows he married C____ A____ on 11 June 2012. 7. A DD Form 2656-6, dated 24 December 2014, shows he requested a change to his spouse-only SBP coverage to resume the existing level of coverage for his new spouse, C____ A____, due to remarriage. 8. His former spouse did not provide written consent for cancellation of former spouse SBP coverage. REFERENCES: 1. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses. This law also decreed that State courts could treat military retired pay as community property in divorce cases if they so chose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The Uniformed Services Former Spouses Protection Act contains strict jurisdictional requirements. The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 2. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring establishment of SBP on the former spouse's behalf, provided the member agreed to provide coverage. 3. Title 10, U.S. Code, section 1450(f)(1)(2), states a member who has elected former spouse coverage under Title 10, U.S. Code, section 1448(b) (Insurable Interest and Former Spouse Coverage), who subsequently marries may change the former spouse election to provide an annuity to the new spouse subject to certain limitations. A change of election under this subsection to provide an annuity to a spouse instead of a former spouse may be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(b) of this title. DISCUSSION: 1. The applicant's request to change his SBP beneficiary from former spouse to spouse was carefully considered. 2. He made an SBP election of full spousal coverage for his then wife, D____ E____, at the time of his retirement in July 1995. 3. After his divorce from D____ E____ in October 2007, his former spouse made a request for deemed election. The labeling of her request as a "deemed election" is a misnomer. As their divorce decree did not mandate the applicant's continued SBP coverage of his former spouse, there was no actual deemed election. The applicant's consent to provide continued coverage to her by submitting a request to change his SBP coverage from spouse to former spouse was voluntary, not court-ordered, and DFAS honored the voluntary former spouse election. 4. He then married C____ A____ in June 2012 and requested to change his SBP beneficiary from former spouse to his current spouse in December 2014. 5. A member who has elected former spouse coverage under Title 10, U.S. Code, section 1448(b), who subsequently marries may change the former spouse election to provide an annuity to the new spouse. A change of election under this subsection to provide an annuity to a spouse instead of a former spouse may be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(b) of this title. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015739 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015739 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2