ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190001015 APPLICANT REQUESTS: Through counsel correction of DA Form 4240 (Data for Payment of Retired Personnel) to show he did elect to participate in the Survivor Benefit Plan and add his current spouse as a beneficiary. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Absolute Divorce or Annulment, dated 18 May 1988 * Marriage Certificate, dated 12 April 1990 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 1990 * DA Form 3713 (Data for Retired Pay), dated 14 June 1990 * DA Form 2339 (Application for Voluntary Retirement), dated 14 June 1990 * Memorandum, Subject: Request for Retirement for the applicant, dated 14 February 1990 * DA Form 4240, dated 21 June 1990 * Certificate of death, dated 10 August 2010 * Marriage Certificate, dated 24 June 2017 * Self-authored letter, dated 8 October 2017 * Defense Finance and Accounting Service (DFAS) letter, dated 1 December 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 through counsel in pertinent part: * during the applicant’s retirement process he completed DA Form 4240 and noted his beneficiary for unpaid retired pay would be his then-wife and he noted he did not have any dependent children and marked to decline coverage in part 3, block 12 * the applicant indicated he had been informed and counseled about the SBP and concurred with the decision * Ms. passed away on 10 August 2010 while married to the applicant * the applicant met and married Ms. on 24 June 2017 and wanted to add her as his new SBP beneficiary * the applicant discovered he had accidentally declined SBP coverage in June 1990 and his current spouse would not be entitled to any retirement benefits upon his death * on 8 October 2017, the applicant wrote a letter to DFAS explaining the situation and, on 1 December 2017, DFAS sent a letter explaining the only way to correct the error was through the Board 3. A review of the applicant’s records show the following on: * 7 June 1979 – the applicant enlisted in the Regular Army * 21 June 1990 – the applicant completed DA Form 4240 indicating in: * part 2 (Beneficiaries for Unpaid Retired Pay or Gratuity Pay), item 9a his then-spouse Ms. * part 3 (SBP Election): * item 10; are you married “Yes” * item 12e; “I decline coverage” * the applicant endorsed the form along with a witness * 31 August 1990 – the applicant was honorably released from active duty by reason of retirement, DD Form 214 shows he completed 11 years, 3 months, and 4 days of net active service with 9 years, 10 months, and 5 days of prior active service, and 1 year, 6 months, and 10 days of prior inactive service 4. The applicant provides: * Certificate of Absolute Divorce or Annulment showing the applicant and Ms. were divorced on 18 May 1988 * Marriage Certificate showing the applicant and Ms. were married on 12 April 1990 * DA Form 3713 showing the applicant attained 20 years of active federal service on 21 August 1989 * DA Form 2339 showing the applicant’s formal request for retirement * Memorandum, Subject: Request for Retirement for the applicant wherein his request for retirement was approved * Certificate of death showing Ms. died on 10 August 2010, and she was married to the applicant and he was the informant * Marriage Certificate showing the applicant married Ms. on 24 June 2017 * Self-authored letter wherein the applicant explains he was divorced 2 years prior to marrying Ms. and meant to select no beneficiaries when he made his SBP election and it must have been a clerical error in the wording of the form * DFAS letter wherein a DFAS official informed the applicant his original SBP election could not be changed because by law it was prohibited, and he could petition the Board 5. See applicable SBP laws below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the SBP election he made (to decline coverage for his spouse), as documented on a DA Form 4240, prior to his retirement. There is no evidence that the applicant made that election in error; there was no amount or reduced amount shown in item 13, confirming the applicant’s election to decline coverage. The is no evidence that the applicant attempted to make a change to this election upon marriage after his retirement. By law, the applicant’s election is irrevocable; there is no evidence of an error or injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. An election, once made, was irrevocable except in certain circumstances. 3. Department of Defense Financial Management Regulation section 430601 states a member who is participating with spouse coverage and who does not have an eligible spouse beneficiary may, upon remarriage resume coverage. Unless a member elects not to cover the new spouse within one year after the marriage, spouse coverage automatically resumes at the first anniversary of the marriage. ABCMR Record of Proceedings (cont) AR20190001015 5 1