ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  25 February 2019

		DOCKET NUMBER:  AR20160007029


APPLICANT REQUESTS:  correction of her former husband's records to show he changed his Survivor Benefit Plan (SBP) election from spouse coverage to former spouse coverage.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* self-authored memorandum for the Army Review Boards Agency, dated 29 March 2016, subject:  Former Spouse SBP
* County District Court Division Consent Order, dated 29 May 2001

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant, the former spouse of a retired service member, states:

* she consented to SBP spouse coverage for a reduced amount per her then husband's request in connection with his retirement
* she was never briefed about or informed to complete a "deemed election" for former spouse SBP coverage within 1 year after divorce
* she learned the information during a telephone call with the Defense Finance Accounting Services (DFAS) on 26 February 2016 when inquiring as to the amount she would receive in the event of her former husband's death

3.  The service member enlisted in the Regular Army on 16 December 1975.

4.  The applicant and the service member married on 21 April 1977.

5.  The service member's records contain a DA Form 2339 (Application for Voluntary Retirement), dated 9 August 1994, wherein he indicated a desired retirement date of 1 April 1995.

6.  The service member's records contain pages 3 and 4 of a DD Form 2656 (Date for Payment of Retired Personnel), dated 8 December 1994, showing he elected spouse only coverage at a reduced base amount.

7.  On 31 March 1995, the service member retired.

8.  The applicant and retired service member divorced on 13 September 2000.

9.  Paragraph 3k of the consent order of post separation support, permanent alimony, and equitable distribution entered into agreement by the applicant and the retired service member on 29 March 2001 states:

That the Plaintiff [applicant] shall continue to be listed as the sole beneficiary of the Survivors Benefit Plan as is presently constituted herein.  That the Defendant [retired service member] shall take no action whatsoever to change said beneficiary.  That the Defendant [retired service member] shall continue to pay the premium cost of said benefits plan.

10.  There is no evidence of record showing the retired service member submitted a change to his SBP coverage from spouse to former spouse in compliance with the consent order.

11.  The retired service member's DFAS records contain a Certification of Vital Record on Application, License and Certificate of Marriage from the State of North Carolina, Cumberland County, showing the retired service member remarried on 3 April 2010.

12.  The retired service member's DFAS records contain two DD Forms 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 17 March 2016, showing he stopped the spouse-only coverage election based on his divorce from the applicant, which automatically suspended the spouse-only coverage, and he requested a change to resume the existing level of spouse-only coverage at a reduced amount of retired pay based on his remarriage.

13.  The applicant submitted a self-authored memorandum, dated 29 March 2016, wherein she stated:

	a.  She and her former husband married on 21 April 1977 and divorced on 13 September 2000.  Her former husband retired from the U.S. Army on 3 March 1995 (should read 31 March 1995).  They were married for 18 years of his Army career.

	b.  Their divorce decree states her former husband shall take no action whatsoever to change his beneficiary and shall continue to pay the premium costs of said benefits.

	c.  Her former husband telephoned her on 26 February 2016 to update her on his health condition.  The same day, she telephoned the DFAS Retired Pay Section inquiring as to how much she would receive in the event of her former husband's death.  The DFAS representative assisting her stated there was no "deemed election to request Former Spouse Survivor Benefit Plan" on file.  She did not understand what this terminology meant.  She thought if her former husband died before her, the former spouse SBP coverage would start automatically.  She stated DFAS informed her that she should have received this information at her then-husband's retirement briefing.  She informed DFAS that she was never made aware that she should attend and therefore never attended.  Her then-husband asked her to go with him to the SBP Office and asked her to concur with his election for the reduced amount, and she did so.

	d.  DFAS informed her that they could not correct his election and advised her to contact the post Retirement Services Office, who then directed her to complete a DD Form 149.

	e.  Her then-husband used to tell her, "Even if one day we divorce, the [A]rmy will take care of you for the rest of your life."

14.  A letter from DFAS to the retired service member, dated 28 April 2016, states an adjustment was being made to his SBP coverage from no beneficiary to spouse effective 3 April 2011.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief.  The Board agreed the record should have been corrected within one year of the court order.  However, the Board understands the FSM remarried and public law allows for coverage of the new spouse notwithstanding the court order.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

: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 showing the FSM elected former spouse SBP coverage within one year of the court order.

	 										___________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.


ADMINISTRATIVE NOTE(S):  not applicable.



REFERENCES:

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 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.

2.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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.

3.  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.

4.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.


ABCMR Record of Proceedings (cont)	 AR20160007029
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