IN THE CASE OF: BOARD DATE: 21 December 2017 DOCKET NUMBER: AR20170011961 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 IN THE CASE OF: BOARD DATE: 21 December 2017 DOCKET NUMBER: AR20170011961 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 submitted a request to the Defense Finance and Accounting Service change his Survivor Benefit Plan election to former spouse coverage at the maximum base amount (full retired pay) effective 24 June 2014 and his request was received and approved in a timely manner. ___________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. IN THE CASE OF: BOARD DATE: 21 December 2017 DOCKET NUMBER: AR20170011961 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, in effect, correction of his records to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). 2. The applicant states his former spouse has always been his SBP beneficiary since they originally married in 1985. They divorced in 2013. When he contacted the Defense Finance and Accounting Service (DFAS) in February 2017 to update her personal contact information, DFAS informed him that she could not remain as his beneficiary because he did not change his election within 1 year of their divorce. He has been retired for almost 40 years and was not aware of the 1-year rule. His SBP premiums have been paid in full for several years and he wishes for his former spouse to receive the annuity. 3. The applicant provides: * Rocky Mountain Cancer Centers treatment records, dated 2 March 2017 and 2 May 2017 * Superior Court of Washington County of Pierce Order on Motion to Convert Decree of Legal Separation to Decree of Dissolution, dated 25 June 2013, with accompanying Superior Court of Washington County of Pierce Decree of Legal Separation, dated 27 February 2009 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 11 September 1956. 3. His records contain a DA Form 2339 (Application for Voluntary Retirement), dated 5 April 1977, wherein he indicated a desired retirement date of 31 July 1977. 4. His records contain a DA Form 3713 (Data for Retired Pay), dated 13 April 1977, showing the entry "NA [not applicable]" in item 31 (Retired Servicemen's Family Protection Plan (RSFPP), Member States). 5. His records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 20 July 1977, wherein he indicated he was not married and declined SBP coverage. 6. He retired effective 31 July 1977. 7. His records indicate he and (maiden name unknown) married on 27 July 1985. 8. His DFAS records contain a self-authored letter, dated 17 July 1991, informing DFAS he retired in August 1977, at which time he was single and had no reason to enroll in the SBP. He is now married and would like to enroll for spouse coverage. He understands there will be an open enrollment period in April 1992 and requested assistance. 9. His DFAS records contain a DFAS-IN Form 20-108 (Reply to Correspondence for Information Regarding SBP), dated 19 August 1991, informing him of the following: a. "If you remarry, your new spouse will become an eligible beneficiary for the SBP annuity on the first anniversary of remarriage or date of birth of a child of that remarriage prior to the first anniversary date." b. "SBP cost for spouse coverage will be reinstated the first day of the month following the date your new spouse becomes an eligible beneficiary (or the first day of the month in which the spouse becomes eligible if the first anniversary or child's birth date is the first day of a month)." c. "A copy of marriage certificate is needed for completion of our records." d. "Please send a copy of your marriage certificate and date of spouse [sic] birthday. Open season is open for individual who was denied SBP because of different reason. If you have been marry [sic] more than one year you need to apply for open season." 10. His DFAS records contain a self-authored letter, undated, wherein he stated he recently read articles regarding the SBP in Issue 4, 1991, of Army Echoes and was considering enrollment. He requested information regarding enrollment costs. 11. His DFAS records contain a DD Form 2618 (SBP Open Enrollment Election), dated 23 March 1993, wherein he elected spouse and children coverage at the maximum base amount (full retired pay). His spouse is shown as and their date of marriage as 27 July 1985. 12. Superior Court of Washington County of Pierce Order on Motion to Convert Decree of Legal Separation to Decree of Dissolution, dated 25 June 2013, with accompanying Superior Court of Washington County of Pierce Decree of Legal Separation, dated 27 February 2009, show the applicant and divorced on 25 June 2013. The separation agreement specified the applicant would continue to maintain his SBP and name as the recipient. 13. On 2 March 2017, the applicant was diagnosed with stage IV prostrate cancer with bone metastases. 14. His DFAS records contain a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 9 March 2017, wherein he indicated: * he was currently unmarried * the election was being made pursuant to a written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution, or annulment approved by a court order * his former spouse remarried on 25 November 2013 * he was not aware of the requirement to change his election to former spouse coverage within 1 year of his divorce * his SBP was terminated due to the 1-year restriction * he requested a waiver of the 1-year restriction REFERENCES: 1. Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA). The USCOA authorized a voluntary survivorship annuity plan under which members of the Uniformed Services could provide an annuity for their spouses and/or eligible dependent children after the member's death in retirement. 2. Public Law 87-381, enacted 4 October 1961, established the RSFPP. The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA. 3. 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. 4. 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 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 USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the former service member by virtue of the former service member's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 5. Public Law 101-189, enacted 29 November 1989, established an open enrollment season from 1 October 1991 through 30 September 1992. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. 6. Public Law 101-510, enacted 5 November 1990, delayed the start of the third open enrollment season to 1 April 1992 through 31 March 1993. 7. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 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. DISCUSSION: 1. The applicant enrolled in the SBP for spouse and children coverage at the maximum base amount (full retired pay) on 23 March 1993 during an open enrollment season. 2. He divorced on 25 June 2013 and continued to pay SBP premiums pursuant to the requirements of a court order entered into voluntarily as part of a proceeding of divorce. However, the evidence of record shows he did not submit a request to change his election to former spouse coverage within 1 year of his divorce. 3. He was diagnosed with stage IV prostrate cancer with bone metastases on 2 March 2017. He did not remarry and has no other eligible beneficiary. 4. He stated his former spouse has been his SBP beneficiary since they originally married in 1985. When he contacted DFAS in February 2017 to update her personal contact information, DFAS informed him that she could not remain as his beneficiary because he did not change his election within 1 year of their divorce. He has been retired for almost 40 years and he stated was not aware of the 1-year rule. He further stated his SBP premiums have been paid in full for several years and he wishes for his former spouse to receive the annuity as agreed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 2