BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150016488 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150016488 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. ____________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. BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150016488 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 former spouse of a retired former service member (FSM), requests correction of her ex-husband's records to show she made a timely deemed election for former spouse coverage under the Survivor Benefit Plan (SBP). 2. The applicant states: a.  The confusion stems from when she mailed in the claim forms for her portion of his retired pay. She accidently submitted a new SBP form. Each time she had to resubmit the retirement paperwork, she kept adding a new SBP form. b.  She was not provided a copy of the deemed election for SBP when she turned in paperwork at Fort Hood, TX, in November 2006. The only form she had when she left the office that day was a DD Form 2293 (Application for Former Spouse Payments of Retired Pay). She was instructed to keep the form until her ex-husband retired so she could start receiving her portion of his retired pay. She was distraught with the whole divorce proceedings and she did not think of asking for a copy of the SBP form she submitted that day. c.  Eventually her ex-husband retired and she submitted the forms to receive her portion of his retired pay along with the SBP form. Consequently, she received a letter informing her that she did not qualify because she had waited longer than 1 year. d.  She called and explained her situation to the Defense Finance and Accounting Service (DFAS), who can see her information, but DFAS referred her to the Army Board for Correction of Military Records (ABCMR). e.  Her form for her portion of her ex-husband's retired pay was denied because DFAS could not accept the formula stated in the divorce decree and when the divorce decree was revised to show a specific amount instead of the formula, she made the mistake of resending the SBP forms again and received another letter. 3. The applicant provides: * FSM's notarized statement, dated 11 August 2015 * email * Final Decree of Divorce * Agreed Order in the Chancery Court for Montgomery County, TN, at Clarksville, dated 12 May 2015 * three letters DFAS, dated 11 December 2014, 3 June 2015, and 25 June 2015 CONSIDERATION OF EVIDENCE: 1. The applicant and FSM married on 29 September 1984. 2. On 17 April 1986, the FSM enlisted in the Regular Army. 3. On 16 November 2006, the applicant and the FSM divorced. Section IV of the divorce decree shows: * the applicant was awarded 47 percent of the FSM's retired pay * the FSM was directed to name the applicant as the designated beneficiary for his SBP to the percentage extent she was awarded in the divorce * the applicant was responsible for any premiums or charges for the SBP 4. DFAS records show the following forms were submitted by the applicant and the FSM: a.  The FSM submitted a DD Form 2656 (Data for Payment of Retired Personnel), dated 10 September 2014, that shows in: * block 22 (Spouse) – he listed F____ R____ as his spouse and the date of marriage as 12 March 2007 * block 26a (Beneficiary Categories) – he elected spouse only coverage and indicated he did not have dependent children * block 27a (Level of Coverage) – he elected coverage based on full gross pay b.  The applicant submitted a DD Form 2293, dated 28 November 2014, requesting 47 percent of the FSM's retired pay. She also provided a DFAS-Cleveland Form 1059 (Direct Deposit Authorization), dated 29 November 2014, with a voided check and a letter from her counsel at the time, dated 30 November 2006, forwarding a copy of her divorce decree. 5. The applicant provided a letter from DFAS, dated 11 December 2014, which shows her request for payment for a portion of the FSM's retired pay was denied based on the court-order having a hypothetical amount of retired pay. She was directed to obtain a clarifying order with a fixed dollar amount or percentage of the FSM's actual disposable retired pay. She was further advised: a.  Her application package would be retained on file for 90 days. The requested information had to be received within 90 days or the entire application package had to be resubmitted with the requested information. b.  She had to make a deemed election for SBP coverage within 1 year of the date of divorce or other court order requiring SBP coverage. She was also advised the request had to be submitted on a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) and the appropriate place to mail the form. Further, she was given a website and a telephone number to contact if she required additional information. 6. On 31 December 2014, the FSM retired. 7. On 12 May 2015, a modified and amended court order to the applicant's and FSM's final decree of divorce was issued and awarded the applicant 24.93 percent of the FSM's retired pay and designated her as beneficiary for his SBP. 8. She provided a letter from DFAS, dated 3 June 2015, that shows her request for payment of 24.93 percent of the FSM's retired pay had been received and that prior to payment, the FSM had to be given a 30-day notice to provide information regarding the status of the court order. She was advised that unless the FSM provided an order superseding the order she provided, the first payment was tentatively scheduled for 1 August 2015 and any mandatory adjustments would occur accordingly. Further, she was again advised of the requirements for making a deemed election. 9. DFAS records show a DD Form 2656-1, dated 19 June 2015, and signed by both the FSM and applicant was submitted. Block 8 (Date Divorced from Former Spouse) of this form is dated 16 November 2016. 10. She provided letter from DFAS, dated 25 June 2015, that shows her deemed election for the FSM's SBP could not be processed because the request was received more than 1 year after her court order. She was advised a court order by itself could not be used to institute coverage and that an election could be deemed on the basis of a court order or court-approved agreement by the former spouse and former spouse's attorney. The request along with a DD Form 2656-1 had to be received within 1 year of the date of the original court order that awarded the coverage. She also provided email to and from the Army Retirement Services Office showing her attempts to establish an SBP deemed election and guidance to apply to the ABCMR. 11. On 11 August 2015, the FSM provided a letter in which he stated the applicant made a deemed election for SBP in November 2006; however, she was not provided a copy of the document she submitted. He concurred with her request to correct his records to show her as the eligible beneficiary for his SBP coverage. He also stated that he elected SBP for the applicant as required by the court. REFERENCES: 1. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP coverage for former spouses of retiring members. 2. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act 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. Although the applicant's divorce decree ordered designation of her as a beneficiary of the FSM's SBP, there is no evidence she made a timely deemed election of former-spouse coverage. The FSM states he elected SBP coverage for her at the time of his retirement, but his election was for spouse instead of former spouse. 2. DFAS records show the FSM remarried. 3. SBP elections are made by category, not by name. Accordingly, because the FSM had a spouse-only SBP election in effect, his current spouse is the lawful beneficiary of his SBP annuity. The ABCMR will not take any action that would cause the lawful beneficiary to be ineligible to receive those benefits. To do so would constitute an unconstitutional taking without due process of law. 4. The ABCMR may not divest the FSM's current spouse of her interest in the SBP without an order from a State court of competent jurisdiction over the marriage of the applicant and the FSM. This court action would have to include the FSM's current spouse as a party in order to protect her interests. 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 coverage under SBP, she may apply to the ABCMR for reconsideration. Alternatively, a notarized statement from the FSM's current spouse stating she knowingly and voluntarily relinquishes her interest in the SBP would also be a basis for reconsideration. The applicant is further advised that SBP is not divisible under Federal statute. She is either owed the entire SBP annuity as a former spouse or no portion whatsoever. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016488 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016488 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2