BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160003341 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 BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160003341 BOARD DETERMINATION/RECOMMENDATION: The Board determined 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 made a former spouse SBP election in July 2013 within 1 year of his divorce from the applicant * showing DFAS timely received and accepted his former spouse's SBP election * paying the applicant the SBP annuity retroactive to the day after the FSM's death, less any premiums incurred as a result of this correction, if applicable ____________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: 13 June 2017 DOCKET NUMBER: AR20160003341 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 deceased former service member (FSM), requests, in effect, correction of her former husband's records to show he elected Survivor Benefit Plan (SBP) coverage for former spouse and payment of the SBP annuity based on his death. 2. The applicant states: * the Defense Finance and Accounting Service (DFAS) rejected her application to receive the annuity based on her former spouse's death * the rejection was due to a misunderstanding as to the deadline required for submission in that there can be no doubt to her former spouse's intent to provide her with the annuity after 26 years of marriage * her former spouse was a major general and she served as President of New Jersey Bar Association Military Law and Veterans Affairs section * her former spouse earned the right to provide her with an annuity and as set forth in their interspousal agreement as part of their final divorce before the court * her former spouse and she suffered the loss of a son who was serving on active duty in the Air Force and her former spouse sometimes blamed himself * her former spouse also suffered from mental disorientation compounded by the flood damage to their home due to Hurricane Sandy * in accordance with their divorce decree, she was named the beneficiary for former spouse SBP 3. The applicant provides: * Final Judgment of Divorce, dated 10 July 2013 * Official Court Transcript of Divorce Hearing (Excerpts from FSM's Testimony) * Amended Judgment of Divorce, dated 19 February 2015 * DD Form 2656-7 (Verification for Survivor Annuity) * Certificate of Death * DD Form 214 (Report of Separation from Active Duty) * letter from DFAS CONSIDERATION OF EVIDENCE: 1. The FSM was born in April 1938. He served on active duty as a commissioned officer from 8 June 1960 to 31 July 1974, including a tour in Korea and another in Vietnam. 2. Following his discharge from the Regular Army, he was appointed as a Reserve commissioned officer on 7 September 1974. 3. He served in a variety of command and staff assignments and he was promoted to major general. 4. On 15 July 1983, the U.S. Army Reserve Components Personnel and Administrative Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 5. His 20-year letter advised him of his entitlement to participate in the Reserve Component SBP (RCSBP). He was advised that he had 90 days from receipt of the letter in which to elect to participate or remain uncovered until he reached age 60 and was again afforded the opportunity to participate. There is no indication he made an RCSBP election within 90 days of receiving this letter. 6. He and J____ C____, the applicant, were married on 26 July 1986. 7. On 10 May 1995, the U.S. Army Reserve Personnel Center published orders transferring him to the Retired Reserve effective 10 May 1995. 8. The FSM reached age 60 in April 1998 and was placed on the Retired List in his retired grade of major general. His retirement orders are not available for review. 9. On 10 July 2013, the applicant and FSM were divorced. An interspousal agreement was made a part of their divorce decree. The agreement stipulated the FSM would maintain the applicant as the irrevocable beneficiary of his pension and the monthly premium deduction from his military pension would guarantee her payment of survivor benefits would also be construed as spousal support. 10. Excerpts of the FSM's testimony in the Official Court Transcript of Divorce Hearing reads, "do you swear under oath that you would maintain the defendant (applicant) as the beneficiary of your military survivor benefits as a result of your service in the U.S. Military? Yes. Regardless of your potential remarriage? Yes." 11. There is no indication the FSM submitted a change to his SBP coverage from "spouse" coverage to "former spouse" coverage. Likewise, there is no indication the applicant requested a deemed election to change the FSM's SBP coverage to "former spouse" within 1 year of the date of their divorce. 12. In April 2014, less than 1 year after divorce, the FSM completed a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage). He requested a former spouse election due to his divorce. He, the applicant, and two witnesses signed this form. He then mailed this form to the Directorate of Human Resources-Military at Fort Dix, NJ, on 15 January 2015 and requested this election be entered into the Defense Enrollment Eligibility Reporting System. 13. On 15 November 2015, the FSM died. His death certificate shows he was married to J____ Z____ at the time of death. His date of marriage to J____ Z____ is unknown. 14. On 23 December 2015, the applicant corresponded with DFAS and submitted a DD Form 2656-7 (Verification of Survivor Annuity). 15. On 13 January 2016, DFAS wrote to the applicant in reply to her claim for the SBP annuity. DFAS stated that after reviewing the FSM's account, they determined she was not entitled to receive the SBP annuity. Upon retirement, the FSM elected spouse coverage under the SBP. A spouse loses eligibility as a spouse beneficiary upon divorce. Retirees have the option to change their spouse coverage to former spouse coverage upon divorce. For this to become effective, the request must be received from the retiree within 1 year of the divorce. The spouse may also deem the election within 1 year of the divorce if the retiree fails to make a former spouse election and the divorce decree stipulates such coverage. The FSM did not make a request to change his election to former spouse within 1 year and the applicant did not deem the election within 1 year of the divorce. 16. On 19 January 2016, the FSM's widow (J____ Z____) submitted a Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services). She requested payment of unpaid compensation. 17. An email from DFAS, dated 14 April 2017, confirmed that despite the absence of a marriage certificate confirming the exact date the FSM and J____ Z____ were married, it appears they were shy of a full year by 9 days and thus the FSM's widow was not an eligible SBP recipient because they had not been married at least 1 year. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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. The law required a 2-year waiting period for new spouse eligibility following post-retirement marriage. Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage. 2. 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. 3. Public Law 98-94, enacted 24 September 1983, established former spouse coverage for retired members. 4. 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. 5. Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved. DISCUSSION: 1. The applicant and the FSM married on 26 July 1986. He retired in April 1998. According to his DFAS pay records, he elected spouse SBP coverage based on the full amount at that time. They divorced on 10 July 2013. They had signed an interspousal agreement in 2012 that was incorporated into their divorce decree. 2. Their interspousal agreement stipulated that FSM would maintain the applicant as the irrevocable beneficiary of his pension and that the monthly premium deduction from his military pension would guarantee her payment of survivor benefits would also be construed as spousal support. Additionally, excerpts from the FSM's testimony in the Official Court Transcript of Divorce Hearing shows he swore he would maintain the applicant as the beneficiary of his survivor benefits as a result of his service in the military, regardless of his potential remarriage. 3. Even though he indicated he would honor the divorce decree, the FSM did not transmit his otherwise timely election of former spouse coverage, which was also signed by the applicant, within 1 year. 4. SBP elections are made by category, not by name. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse coverage. 5. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. 6. The FSM subsequently remarried. In the event of his death, any SBP benefits would be paid to the beneficiary in effect at the time of death – his current spouse (now widow), not his former spouse – if they have been married for at least 1 year. The exact date of the FSM's marriage to J____ Z____ is unknown. However, DFAS confirmed that the FSM and J____ Z____ had been married for less than a year when the FSM died. 7. Because J____ Z____ had not been married to the FSM for at least 1 year, she is not an eligible SBP recipient. This mean there is no interest superior to the former spouse. It also means, despite the absence of governmental error, equitable relief is appropriate as it would result in effectuating the terms of the divorce decree and entitle the former spouse to an SBP annuity based on the FSM's death, as intended. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003341 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003341 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2