ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20170010096 APPLICANT REQUESTS: to change his beneficiary for his Survivors Benefit Plan (SBP) from his previous spouse to his current spouse. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter to his Congresswoman * letter from Defense Finance and Accounting Services (DFAS) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * divorce decree from first wife * marriage certificate to his current wife FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 states he requests his former spouse be removed from his SBP and his current spouse be added. He was mandated by court order to keep his former spouse on his SBP until their son turned 22 years of age. Upon him turning 22, he went to the Fort Huachuca retirement services to have the SBP changed to his current spouse. He was informed this was a simple process and started the paperwork. After a year and a half of working through several agencies, he came to his last option which was contacting his Congresswoman. 3. The applicant's service record contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 5 July 2007, which shows: * his former spouse listed * he elected coverage for spouse only based on his full gross pay * he had a son whose birthday is 22 November 1993 4. The applicant provides a letter addressed to his Congresswoman dated 17 May 2017, which states: a. He and his former spouse divorced after his retirement from Active Duty. He was court ordered to maintain SBP on his former spouse until their child turned 22 years of age. Upon his 22nd birthday, the applicant went to the Fort Huachuca retirement services office to change his SBP to his current spouse. Several months after, he received a letter from DFAS stating they could not process his paperwork. b. He returned to the Fort Huachuca office and was informed he needed to address the matter with the Army Board for Correction of Military Records (ABCMR). He proceeded to attempt that avenue and was told the Board no longer dealt with retirement issues and he would need to seek alternative methods for resolution. He returned to Fort Huachuca and was told his request would have to go to the Army G-1. c. He attempted to resolve the issue through Army G-1 and was told it would not be possible to remove his former spouse and add his current spouse because the transaction had to be within one year of the divorce or within one year of the new marriage. He attempted to explain he was unable to meet that timeline due to a court order but was told they had no control over the issue and his only other alternative was the ABCMR, thus leading into an endless loop. 5. The applicant provides the following additional documents for the Board's consideration: a. A letter from DFAS, dated 15 December 2015, which states they were unable to process his request. The laws governing SBP state an election for former spouse coverage terminates any prior coverage held, therefore the law does not permit them to add his current spouse to the SBP coverage. b. His DD Form 214, which shows the applicant retired on 31 October 2007. c. A Decree of Dissolution of Marriage, dated 29 October 2008, which shows: (1) The parties agreed the full SBP would remain in place until their minor child reached the age of 22 unless the child became disabled or incapable of self-support. (2) The applicant would have the option to decide whether he wished to cancel the SBP when their child reached the age of 22. If the applicant wishes to no longer maintain the SBP at that time, he is required to notify his former spouse and provide her the opportunity to continue coverage by paying the premiums. d. A State of Arizona Record of marriage which shows the applicant and his current wife were married on 7 April 2010. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the relief is not warranted. 2. The applicant and his former spouse entered into a court-ordered agreement to maintain SBP coverage. The applicant’s contention that the court order only required maintenance of former spouse SBP coverage until his son was 22 years of age does not fully reflect the agreement entered into between the parties. The agreement states that, if the applicant wishes to cancel SBP when the child reached the age of 22, then he is required to notify his former spouse and provide her the opportunity to continue coverage by paying the premiums. There is nothing in the evidence reflecting the former spouse no longer wants to maintain SBP coverage. Relief could not be considered unless the applicant can provide a court order modifying the election or, at minimum, a signed and notarized concurrence from the former spouse regarding the change in election. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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.? 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. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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. Surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law. 3. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 4. Title 10, U.S. Code, section 1450(f) governs changes in election by members who have elected former spouse SBP coverage. A member who elects former spouse SBP coverage may, subject to certain restrictions discussed below, change that election and provide an annuity to his spouse or dependent child. Any such change is subject to the same rules with respect to execution, revocation, and effectiveness as a normal SBP election. Notwithstanding the preceding sentence, a change of election to provide an annuity to a spouse instead of a former spouse may be made, subject to certain restrictions, at any time after the member remarries. A member who, incident to divorce, is required by a court order to elect former spouse coverage or who enters into a written agreement (whether voluntary or required by court order) to make such an election may not change that election unless: (A) In a case in which the election is required by a court order, the member furnishes a certified copy of a court order modifying the provisions of all previous court orders relating to such election so as to permit the change in election. (b) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the member furnishes a statement signed by the former spouse and evidencing the former spouse’s agreement to a change in the election. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010096 4