IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006199 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: The applicant defers requests and statements to counsel and provides no additional evidence. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, correction of the records of a late former service member (FSM) to show he elected the applicant, his former spouse, as the beneficiary of his retired pay and Reserve Components Survivor Benefits Plan (RCSBP). 2. Counsel states: a. Her client, the applicant was previously married to the FSM, an Army reservist service member. The parties were divorced in 1995. Pursuant to a "Judgment on Rules," her client was declared entitled to one-half of the FSM's military retirement upon his becoming eligible to draw said retirement and the applicant was to remain as beneficiary thereof in the event of the FSM's death. b. The FSM died on 25 June 2012. After his death, the applicant contacted the Department of Defense regarding her payment(s) as beneficiary. At the time, the applicant was told that she was not named beneficiary of any policies and/or benefits of the FSM, despite a court order requiring same. c. She recently spoke with representatives of the Defense Finance and Accounting Service (DFAS) and Retirement Services Office and both advised her to inform the Board of this scenario in order to appeal/contest and/or correct any payments made to a beneficiary other than the applicant. 3. Counsel provides copies of the following: * DD Form 1883 (SBP Election Certificate) * Judgment of Divorce * Judgment of Rules * FSM's death certificate and obituary CONSIDERATION OF EVIDENCE: 1. The FSM and Martha [Applicant] were married on 31 December 1970. 2. The FSM was appointed in the Louisiana Army National Guard (LAARNG) on 10 July 1972, with prior enlisted and U.S. Army Reserve (USAR) commissioned service. 3. The FSM's records contain and counsel provided a copy of a DD Form 1883 the FSM completed and signed on 24 February 1991. He indicated on the form he was married to the applicant and had three dependent children. He elected "spouse and children" SBP coverage. His signature was witnessed on the same date. 4. The FSM and the applicant were divorced on 21 February 1995. A "Judgment of Rules" indicated the applicant was entitled to one-half of the FSM's military retirement upon his becoming eligible to draw said retirement and that she would remain beneficiary thereof in the event of the FSM's death. The "Judgement of Rules" does not specifically indicate she was entitled to RCSBP coverage or that she would remain the beneficiary of said coverage in the event of the FSM's death, though reference to a continuing retirement benefit clearly implicated RCSBP, as RCSBP/SBP is the only mechanism by which monies could be paid beyond the death of the FSM. 5. There is no indication that either FSM or the applicant notified DFAS within 1 year of their divorce or that either submitted a change to his initial RCSBP coverage from "spouse and children" to "former spouse" coverage within 1 year of their divorce. 6. The FSM was married to Debra on 6 March 1995. 7. He was honorably discharged from the USAR on 27 March 1996. 8. On 6 March 2007, the FSM faxed the following documents to DFAS: a. A DD Form 1883 (front page), dated 24 February 1991. b. A Judgment of Divorce, dated 21 February 1995. c. A Marriage License showing he and Debra were married on 6 March 1995. d. A DD Form 2656 (Data for Payment of Retired Personnel) he completed and signed on 29 March 2006. He indicated on the form he was married to Debra and had no dependent children. He also indicated on the form in: (1) Section V (Designation of Beneficiaries for Unpaid Retired Pay) – he named "Debra" as the beneficiary and his son in the event of Debra's death and he was electing "spouse only" SBP coverage for Debra at 20 percent of his full gross pay. (2) Their signatures were witnessed on the same date. e. A DD Form 2656-6 (SBP Election Change Certificate) he completed and signed on 28 August 2004. He indicated on the form in: (1) Section II (Current Coverage) – he had elected "former spouse" coverage. (2) Section III (Conditions That Trigger Eligibility to Change Coverage) – he was remarried and wanted to resume existing coverage to a new spouse. The instructions for this section state, "A members with spouse coverage who divorces, AND who does not elect former spouse coverage, is automatically in a "Suspended Coverage" status. To elect former spouse coverage, submit a DD Form 2656-1 (Former Spouse Election Certificate)." (3) Section IV (Requested Change to Coverage) – his election of "spouse only" coverage at full retired pay for Debra. (4) His signature was witnessed and notarized on the same date. 9. The DD Form 2656 instructions state in Section IX – Item 26e (I Elect Coverage For My Former Spouse), if you desire coverage for a former spouse; the DD Form 2656-1 must also be completed and accompany the completed DD Form 2656 to DFAS-Cleveland. 10. The FSM reached age 60 and was placed on the retired list on 20 February 2007. 11. The FSM died on 25 June 2012. His death certificate shows he was married and named Debra as the informant. 12. Title 10, U. S. Code, section 14802(c) incorporates the provisions of the Uniformed Services Former Spouses’ Protection Act (USFSPA) relating to the retired pay. It provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member. The USFSPA accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. When a member dies, USFSPA payments going to a former spouse will stop. Once former spouse payments stop, those funds will revert back to the member's pay. It also established SBP coverage for former spouses of retiring members. 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 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. 14. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant and the FSM were divorced on 21 February 1995. A "Judgment of Rules" shows she was entitled to one-half of the FSM's military retirement upon his becoming eligible to draw said retirement and that she remain beneficiary thereof in the event of the FSM's death. However, when a Soldier dies, USFSPA retired pay payments going to a former spouse will stop and those funds covert back to the member's pay. His spouse, Debra, was named beneficiary of his retired pay upon his death. 2. SBP elections are made by category, not by name. As long as the applicant was the FSM’s spouse, she was the SBP beneficiary. Once they divorced she was no longer a beneficiary. Their "Judgment of Rules," while implicating RCSBP, did not indicate she was awarded former spouse RCSBP coverage in their divorce. More importantly, neither the applicant nor the FSM took the steps required to change the "spouse" coverage to "former spouse" coverage. Accordingly, his spouse coverage went into suspension. 3. The FSM remarried on 6 March 1995 and his widow obtained a vested interest in the RCSBP on their first anniversary. When he died on 25 June 2012, his widow became the eligible beneficiary by law. 4. The Army Board for Correction of Military Records (ABCMR) may not act to terminate the widow's rights in the RCSBP annuity by granting the applicant the SBP, as so doing would deprive the FSM’s widow of a property interest without due process of law. The applicant would have to provide a signed and notarized affidavit from the FSM's widow relinquishing her rights in the RCSBP or obtain an order from a State Court of competent jurisdiction, in an action joining the FSM's widow as a party, declaring that she is the rightful beneficiary of the FSM's RCSBP annuity. 5. If, upon reviewing the matter with the FSM's current spouse as a party, a court determines the applicant is entitled to "former spouse" RCSBP coverage, she may apply to the ABCMR for reconsideration. A notarized statement from the FSM's current spouse stating she knowingly and voluntarily relinquishes her interest in the RCSBP would also be a basis for reconsideration. The applicant is further advised that RCSBP is not divisible under Federal statute. She is either owed the entire annuity as a former spouse or no portion whatsoever. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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) AR20150006199 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006199 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1