IN THE CASE OF: BOARD DATE: 26 March 2019 DOCKET NUMBER: AR20160010080 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 March 2019 DOCKET NUMBER: AR20160010080 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 to show he elected coverage under the Survivor Benefit Plan (SBP) for his current wife, , within 1 year of the date on which they married, 29 July 2014. 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: 26 March 2019 DOCKET NUMBER: AR20160010080 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, correction of his records to show he elected coverage under the Survivor Benefit Plan (SBP) for his current wife. 2. The applicant states: * officials from the Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay, denied his request to add his wife to his SBP stating he would have had to have informed them prior to their first year anniversary in order for his spouse to be eligible * DFAS denied his request in a letter dated 12 January 2016 and again on 3 March 2016, after he requested reconsideration * DFAS stated he would be informed if Congress approves an open season enrollment period that would allow him to add his spouse * he and his current wife were married on 29 July 2014 * on 20 October 2014, prior to their 1 year anniversary, his wife was issued a DD Form 1173 (United States Uniformed Services Identification and Privilege Card) through the Defense Enrollment Eligibility Reporting System (DEERS) * this was the second time the DD Form 1173 had to be issued, since the first identification card contained the wrong name on it * during both visits, he asked the Department of Defense (DOD) DEERS clerks if there was anything else they needed to do to ensure his spouse enjoyed all the benefits he earned and both times the clerks said they were “good to go” * his retirement pay rarely changes, so he doesn’t have the need to review every pay stub as he previously did when he was on active duty, so he did not notice his spouse was not added to the SBP until the end of 2015 * when he noticed the omission, he submitted a DD Form 2656-6 (SBP Election Change Certificate) in December 2015 * adding his spouse to his SBP will not cost any additional money, because he has already been paying for these benefits out of his retirement pay since day one, but this is costing him and his wife in terms of denied earned benefits and peace of mind * he can hardly sleep worrying what will happen to his wife if he suddenly dies, in which case the DOD will not have to pay one cent to anyone because his children are already grown * it is not his or his wife’s fault the DOD is so large that the various sections do not communicate with each other or that the information is separated in such a way that is it almost impossible to find * this makes him wonder what other benefits he, his wife, and his children will be denied because of some lost form within the DOD bureaucracy, which is the same bureaucracy which is supposed to inform him if Congress has an open season * he earned these benefits with blood, sweat, and tears and he is already paying for these benefits with dollars taken from his retirement pay THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * self-authored letter * marriage certificate, dated 29 July 2014 * DD Form 1173, dated 20 October 2014 * DD Form 2656-6, dated 31 December 2015 * DFAS letter, dated 12 January 2016 * applicant’s letter to DFAS, dated 2 February 2016 * DFAS letter, dated 3 March 2016 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2293 (Application for Former Spouse Payments from Retired Pay) * Military Qualifying Court Order, dated 24 March 2006 * Decree of Dissolution, dated 24 March 2006 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 (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. 2. Title 10, U.S. Code, section 1448(a)(5)(A), 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. 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 choose. 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 USFSPA 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. 4. 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. DISCUSSION: 1. After over 5 years of prior active and inactive service, the applicant enlisted in the Regular Army on 26 July 1989. 2. After slightly more than 18 years of marriage to , the applicant and his first wife’s marriage ended in divorce on 24 March 2006. 3. A Military Qualifying Court Order, dated 24 March 2006, stipulates the applicant’s retirement benefits would be divided with his former spouse, _. The court ordered she was entitled to a percentage of his disposable military retired pay to be computed by multiplying 50 percent times a fraction, the numerator of which is 143 months of marriage during the applicant’s creditable military service, divided by the applicant’s total number of months of creditable military service pay, not defined at the time as he was still serving on active duty. 4. Neither the Decree of Dissolution nor the Military Qualifying Court Order make any reference to mandating SBP coverage for the former spouse. 5. The applicant was retired on 31 July 2006, due to sufficient service for retirement. 6. A DD Form 2656 (Data for Payment of Retired Personnel) is not in his available records for review to show what his SBP election at the time of his retirement. 7. On 13 May 2011, the applicant’s former spouse applied for 50 percent of his disposable retired pay per month. 8. On 29 July 2014, the applicant married his current spouse, . 9. His current spouse was issued a DD Form 1173 on 20 October 2014. 10. The applicant signed a DD Form 2656-6 on 31 December 2015, requesting to change his SBP election from child only to spouse only due to marriage. 11. On 12 January 2016, DFAS informed the applicant they were unable to add his spouse to his SBP because he would have had to notify them prior to his first year anniversary in order for his spouse to have been eligible. He was also informed that Congress occasionally approves an open season enrollment period that would allow him to add his spouse to his SBP and that he would be informed if that opportunity becomes available. 12. The applicant appealed the DFAS denial of his request on 2 February 2016. He stated he was misinformed by the DEERS clerks at the time his wife was issued her DD Form 1173, less than 3 months after their marriage, that there was nothing else they needed to do to ensure his current spouse received all the benefits to which they were eligible. 13. DFAS reiterated their denial in a follow-up letter to the applicant on 3 March 2016, stating his spouse was not eligible to be added to his SBP as he did not notify them prior to his first year anniversary. 14. The applicant and his former spouse divorced prior to his retirement. Neither the Decree of Dissolution nor the Military Qualifying Court Order ordered him to provide SBP coverage for his former spouse. 15. He married his current spouse on 29 July 2014. The evidence shows his current spouse was issued a DD Form 1173 on 20 October 2014, less than 3 months after their marriage. 16. The applicant claims to have spoken with the DEERS clerks on more than one occasion at the time her DD Form 1173 was issued, which is well prior to the first anniversary of their marriage, to be certain there was nothing else required on his part to ensure his current spouse was eligible to receive all entitled benefits and was informed there was nothing he needed to do. 17. Once he became aware that he did indeed need to formally request to add his current wife to his SBP, he submitted the request on 31 December 2015 to change his SBP coverage from child-only to spouse-only. This request came 17 months after his remarriage, 5 months after the required timeframe. 18. Law requires that a person who is not married upon becoming eligible to participate in the SBP, but who later marries, may elect to participate in the SBP. Such an election must be made and received within 1 year after the date on which that person marries. 19. Although DFAS officially received his request to change his SBP election from child only coverage to spouse coverage 17 months after the date on which he remarried, the applicant makes the case he made a good faith attempt to inquire about needed paperwork for benefits eligibility within the required 1-year time frame at the time of his marriage when he added his wife to DEERS and was advised by officials that nothing further was needed. This led him to believe her coverage was automatic. 20. He should not be penalized for the dissemination of erroneous information and/or the lack of proper processing by officials who are expected to possess a greater knowledge of the SBP requirements and at a minimum be able to direct Soldiers to those who can correctly advise and administer the program. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010080 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2