IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150004299 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, the spouse of a deceased former service member (FSM), requests payment of her deceased husband's Survivor Benefit Plan (SBP) annuity. 2. The applicant states the FSM elected SBP upon his retirement. He expected her to receive the SBP so she could take care of herself after his death. She is disabled and does not work. The FSM always told her that she would be taken care of because he had been paying the SBP premiums every month for many years. 3. The applicant provides: * two marriage certificates, dated 17 May 1976 and 17 October 2005 * divorce decree, dated 15 and 20 June 1995 * DD Form 2656 (Data for Payment of Retired Personnel), dated 5 February 1996 * certificate of death * DD Form 2656-7 (Verification for Survivor Annuity), dated 30 December 2014 * letter from the Office of the Deputy Chief of Staff G-1, dated 9 January 2015 CONSIDERATION OF EVIDENCE: 1. The FSM and the applicant were married on 17 May 1976. 2. The FSM enlisted in the Regular Army on 16 September 1980. 3. The FSM and the applicant were divorced on 15 June 1995. 4. The FSM's record contains a DD Form 2656, dated 5 February 1996, which shows he elected SBP coverage for his former spouse, based on his full gross retirement pay, and named the applicant as his former spouse. 5. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired from active duty on 30 June 1996. 6. The FSM and the applicant remarried on 16 October 2005. 7. The FSM died on 20 April 2014. His death certificate shows the applicant as his spouse. 8. The applicant provides: a. A DD Form 2656-7, dated 30 December 2014, which shows she applied for the FSM's SBP annuity and listed herself as the spouse. b. A letter from the Army G-1, dated 9 January 2015, wherein the Chief, Army Retirement Services informed her, in effect, that he had forwarded her DD Form 2656-7 to the Defense Finance and Accounting Service (DFAS) for processing. Upon following up with the submission, DFAS informed him that she (the applicant) had previously been notified by DFAS that her request for her deceased husband's SBP annuity was denied because the FSM's DD Form 2656 shows he elected SBP for former spouse. The letter went on to say her request was denied because the FSM had the opportunity to change his election to spouse within 1 year of their marriage; however, he failed to make the necessary changes. 9. 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. Elections are made by category, not by name. 10. 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. 11. 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. 12. 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. 13. 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 one 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 AND CONCLUSIONS: 1. This case should be considered as a matter of equity. 2. The evidence of record shows the applicant and the FSM were married in 1976 and divorced in 1995. Their divorce decree ordered that the applicant receive the FSM's SBP annuity. In 1996, the applicant elected to provide an SBP annuity to his former spouse, and indicated the applicant was his former spouse. 3. The applicant and the FSM remarried in 2005; however, the FSM failed to change his SBP election to reflect spouse only coverage within a year of their marriage. Nevertheless, the applicant is the only person with an interest in the FSM's SBP, and the FSM's intent for her to receive this annuity is clear. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 spouse only coverage within 1 year of his second marriage to the applicant * showing this election was timely received and processed * paying the applicant the SBP annuity minus any associated costs _______ _ _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. ABCMR Record of Proceedings (cont) AR20150004299 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004299 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1