ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200000684 APPLICANT REQUESTS: as the former spouse of the Former Service Member (FSM) requests to be deemed the Survivor Benefit Plan (SBP) annuitant. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense and Finance Accounting Service (DFAS) letter, dated 3 May 2019 * DD Form 2656-7 (Verification for Survivor Annuity), dated 10 May 2019 * Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 10 May 2019 * FMS Form 2231 (Direct Deposit), dated 10 May 2019 * SF 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) * Marriage certificate * Divorce decree * Mediation settlement agreement * Death certificate * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 February 1985 * DFAS letter, dated 11 June 2019 * Self-authored letters * U.S Postal Service receipts 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 (ABCMR) 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: a. She has not received the SBP which is stated in the divorce decree, dated 26 June 2006. The papers she filed after the FSM's death said she was denied because the FSM did not sign 30 days after the divorce. He realized it a year before his death and said he corrected he mistake. b. The FSM passed away on 30 April 2019. He had been a warrant officer in the Army. They were married 44 years and they were married the whole time he had served in the Army. His last duty station was at Fort Eustis, Virginia. It was there that someone came to their home on post and explained the SBP, and he signed up for it. They were divorced in October 2005. As part of their mediation agreement, he asked for the SBP to come to her and for him to keep up the payments. He agreed and had done so all these years. The divorce was filed in the circuit court of the twentieth judicial circuit in and for. She filed papers with DFAS soon after his death and showed proof of the divorce agreement. A year before his death he called her and said he had just found out that he should have signed a paper within a year after their divorce, but for her not to worry because he had filled out some papers, signed them, and everything was okay. Somehow he did not know about the one-year thing and neither did she. She does not know where the correct papers went at DFAS. She has been writing and calling them ever since. She did file an appeal as soon as she knew about it, but one person told her she did not write the word appeal in her letter, it did not go through. Another one at another time said they received it. She has a text from the FSM where she asked him about the SBP papers since she wanted proof of the SBP and he replied they were delayed since it takes longer by mail, but they are on the way. The FSM was married again and his wife knows that he was to get the SBP benefits. c. She received a letter, dated 4 December 2019, on 13 December 2019, and she is sending all information she has showing the calls she made to DFAS and what she was told. They all said they would forward it on to the review Board and she was given different amounts of time before she would hear about a decision. When she got this address she wrote directly to the Board. It does not seem like the Board got any of the information. She made the last call on 9 December 2019, to DFAS and spoke at 8:25 am to someone by the name of. She told her she would have a decision within 90 business days which would be from 30 September 2019. She would like to know from the Board the date she can receive the decision and if there is anything else she can provide that the Board would need. The FSM told her a year before he passed, to not worry about the mistake he made of not signing a paper that was required within a year of divorce. He was not aware of it, but he signed a paper taking care of it. He had money taken out of his retirement for it each and every year. 3. A review of the FSM's official records shows the following: a. On 17 May 1971, having had prior enlisted service, the FSM was appointed as a Reserve warrant officer. b. On 31 March 1981, the FSM was honorably retired from the U.S. Army Reserve. He completed 9 years, 10 months, and 14 days of net active service, with 10 years, 2 months, and 14 days of total prior active service. c. On 13 February 1984, the FSM was recalled to active duty. d. On 28 February 1985, the FSM was honorably discharged by reason of expiration term of service and reverted to the Retired list. e. The FSM's records are void of a DD Form 1883 (SBP Election Certificate) or DD Form 2656 (Data for Payment of Retired Personnel). 4. The applicant provides: a. DFAS letter, dated 3 May 2019 wherein DFAS provided requested forms for the applicant to submit a claim. b. DD Form 2656-7 showing the applicant made an SBP claim as the FSM's former spouse. c. Form W-4P for withholding of taxes. d. FMS Form 2231 showing the applicant's bank depository information. e. SF 1174 showing the applicant made a claim for unpaid compensation based on the FSM's death. f. Marriage certificate showing the FSM and applicant were married on 14 March 1962. g. Divorce decree showing the FSM and applicant were divorced on 26 June 2006. h. Mediation settlement agreement wherein on page 1, item number 2, it states "SBP, husband shall pay for and continue in effect the SBP for the benefit of the wife." i. Death certificate showing the FSM died on 30 April 2019, and the informant was his now spouse Ms. j. DFAS letter, dated 11 June 2019, that states; (1) This letter is in reply to your recent correspondence concerning your eligibility to receive an annuity under the SBP of your deceased former spouse. After reviewing the FSM's account, we have determined that you are not entitled to receive an annuity under SBP. For the reason(s) set out more fully below, your claim is denied in full. (2) SBP gives retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors. Upon retirement the FSM elected to cover you under SBP. However, 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, we must receive a request from the retiree within one year of the divorce. (3) If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within one year of the divorce. A divorce decree alone does not constitute a deemed election. The FSM did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by you. k. Self-authored letters wherein the applicant provides the mediation settlement agreement because her claim may have been lacking that document. She also provides a time line of correspondence with DFAS. l. U.S Postal Service receipts showing dates when documents were mailed to DFAS. 5. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. One potential outcome discussed was to grant relief based upon the terms of the divorce decree. However, based upon a lack of evidence showing the FSM made a timely election to change his SBP coverage to former spouse, as well as the FSM being married to another individual at the time of his death, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the FSM’s SBP coverage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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 one year of the date of the court order or filing involved. 3. 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. 4. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states: a. A member who elected spouse coverage upon becoming eligible to participate in the Program may elect to cover a former spouse (who was not the member’s former spouse at the time the member became eligible to participate in the Program) within 1 year after the date of decree of divorce, dissolution, or annulment. b. a member electing former spouse coverage shall submit to the Secretary concerned DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) setting forth whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily as part of, or incident to, a proceeding of divorce, dissolution, or annulment and, if so, whether such voluntary written agreement has been incorporated in or ratified by a court order. c. A member described in paragraph 9.a. or 9.b. of this enclosure who is required by court order, or who executes a written agreement that is incorporated, ratified, or approved by a court order, or filed with a court in accordance with applicable State law, to elect former spouse or former spouse and child coverage, and who does not make such an election, shall be deemed to have made the required election if the Secretary concerned receives from the former spouse or the former spouse’s attorney DD Form 2656-10 (described in subparagraph 7.b.(7) of the front matter of this Instruction) within 1 year from the date of the court order or filing involved. The form must be accompanied by a copy of the court order, regular on its face, or an appropriate official statement that the agreement has been filed with the court in accordance with applicable State law. The election shall be effective on the first day of the first month that begins after the date of the court order or filing, or the date the member retires, whichever is later. //NOTHING FOLLOWS//