IN THE CASE OF: BOARD DATE: 28 October 2020 DOCKET NUMBER: AR20200001684 APPLICANT REQUESTS: as former spouse of the Former Service Member (FSM), that the FSM’s records reflect the timely election of former spouse coverage under the Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum in Support of Application for Correction of Military Records dated 20 November 2019 * Claims Appeals Board Decision dated 26 November 1997 * Constituted Pension Order dated 10 November 2009 * Defense Finance and Accounting Service (DFAS) letter dated 14 January 2010 * DFAS letter dated 27 April 2010 * Claims Appeals Board Reconsideration Decision dated 24 April 2013 * Death Certificate dated 15 June 2018 * Letter to her Congressional Representative dated 9 July 2018 * Defense Finance and Accounting Service letter dated 24 July 2018 * DFAS letter dated 16 August 2018 * DD Form 2656 (Survivor Benefit Plan/ Reserve Component (RC) SBP Request for Deemed Election) dated 17 August 2018 * Authorization for Release of Records and Information dated 21 August 2018 * Midwest Law – Military & Veterans letter dated 22 August 2018 * Claims Appeals Board Reconsideration Decision dated 20 December 2018 * DFAS letter dated 15 March 2019 * DFAS letter dated 18 March 2019 * Midwest Law – Military & Veterans letter dated 16 April 2019 * Appeal Decision dated 27 September 2019 FACTS: 1. On behalf of the applicant, legal counsel provides that the FSM failed to elect former spouse coverage under the SBP in accordance with his obligations as dictated by his divorce decree. Despite his failure to do so, the applicant met all necessary requirements to be entitled to the SBP annuity. However, compelling principles of fairness and equity, coupled with a clear ABCMR precedence granting relief in materially similar cases, warrant that the same be permitted for the applicant resulting in her entitlement to the SBP annuity as intended. a. The FSM and the applicant were married on 26 December 1976 and divorced on 26 August 2009. Their divorce decree provided that the applicant was entitled to 50% of the marital share of the FSM’s retirement pay. The decree further directed that the FSM elect that the full amount of his monthly retired pay be paid towards the SBP annuity, the cost of which would be split amongst both parties. Further, the issued decree required that the FSM elect the applicant as his SBP beneficiary upon his retirement. The FSM retired on 31 March 2010 but did not make this required election. During his separation processing, DFAS automatically enrolled him into the SBP and the applicant was identified on his monthly retirement pay statements as his SBP beneficiary. b. After their divorce, the applicant’s attorney provided a copy of their divorce decree to DFAS for payment of her portion of the FSM’s retirement pay. DFAS then provided the supporting documentation to the FSM. When the FSM passed on 9 June 2018, DFAS discontinued retirement pay distribution to the applicant. c. In response to her inquiry, on 24 July 2018 she received a letter from DFAS explaining that she was not entitled to the Survivor Benefit Annuity (SBA) because the FSM failed to change his election to “former spouse” and she did not make a “deemed election” within 1 year of their divorce. d. On or about 22 August 2018 she appealed DFAS’s decision to the Defense Office of Hearings and Appeals (DOHA). On 18 March 2019 DFAS issued an Administrative Report explaining its denial citing the information contained in 1c.above. e. On 16 April 2019 she submitted her rebuttal to the provided Administrative Report. In it counsel provided that the Report’s description of the procedural and factual history was accurate; however, there were compelling equitable reasons for DOHA to waive the deemed election time limitation resulting in the applicant’s entitlement to the SBA. Counsel then asserted the applicant’s intent to seek relief from the ABCMR. f. On 27 September 2019 DOHA disallowed the applicant’s claim. They acknowledged the requirements as presented within the divorce decree and provided that she was again not entitled to the SBA annuity because of the information contained in 1c. above. DOHA then directed the applicant to DOHA claims case referencing Title 10, United States Code (U.S.C.) 1552 wherein the Board corrected a members records to indicate that he had timely elected coverage for his former spouse. DOHA stated that such an “equitable remedy” was outside of their purview and then directed the applicant to the ABCMR resource materials. g. In further support of the applicants request, counsel provides that the Board should grant relief in this case as they have done in previous cases such as: 1) AR20150017785 wherein the former spouse of a FSM was granted correction of his records to reflect timely election of former spouse SBP coverage pursuant to the terms of their divorce decree. Counsel also referenced 4 additional cases with the same request and relief granted. 2) AR20150002300 wherein the FSM’s records were corrected to reflect the timely election of former spouse coverage as required by Agreement of Community Property. 3) AR20150003993 wherein the FSM’s records were corrected to reflect the timely election of former spouse coverage even though the obligation was only implied in a divorce decree. Counsel contends that there are numerous other examples. h. Notably, the ABCMR on at least one occasion has discerned a “duty to assist” for DFAS authorities where an applicant and her attorney exercised due diligence in attempting to ensure benefits would properly transfer to a former spouse as noted by the Air Force Board of Correction of Military Records (AFBCMR) Docket Number 20140006418. Note that in this case the Board mistakenly referenced “Army authorities” carried such duty but it is clear that the Board meant to state “DFAS authorities.” i. In view of the above series of events, counsel request that the FSM’s records be corrected to reflect a change of his SBP election from “spouse” to now reflect “former spouse” as of 26 August 2009 (date of their divorce) indicating a timely election resulting in entitlement to back pay of the applicants entitled annuity retroactive to 9 June 2018, the day following the passing of the FSM and any other entitlements that the Board deems as fitting and appropriate. 2. A review of the FSM’s available military reflects the following: a. On 9 March 1978 he was commissioned in the United States Army Reserve (USAR) at the rank of Second Lieutenant (2LT) / O-2. b. On 8 February 1980 he was commissioned in the Regular Army. c. On 7 May 2009 he completed DD Form 2648 (Pre-separation Counseling Checklist) d. On 13 July 2009 (Order# 194-0136) he was reassigned pending separation effective 31 March 2010. e. On 31 March 2010 he was retired from active duty at the rank of Colonel (COL) / O-6 and placed on the retired list. f. On 9 June 2018 he passed away. His prepared death certificate indicates that he was divorced. g. On 20 August 2018, the United States Army Human Resources Command (HRC) responded to an inquiry by the FSM’s next of kin (Son) wherein it is stated that they were unable to locate a copy of the FSM’s DA Form 2656, DA Form 2656-1 and DA Form 2656-10. All documents pertain to retirement pay and election of SBP participation. 3. On behalf of the applicant, counsel provides the following: a. Claims Appeals Board Decision dated 26 November 1997 reflective of the Air Force Board for Correction of Military Records (AFBCMR) determining that in the case of an Air Force Reservist who had previously elected SBP coverage for his spouse, but premiums were not initiated when he began receiving retirement pay, although deductions were being made for coverage pertaining to his dependent children that he would not be required to repay premiums that should have been made for his spouse (waived) because he was unaware until November 1993. However collection of all subsequent premiums was warranted because the service member was on notice that no deductions were being made. Therefore the Board upheld its previous decision wherein the service member was required to provide payment for remaining premiums. A waiver of such debt was not warranted. b. Constituted Pension Order dated 10 November 2009 reflective of the court order directing that the applicant be entitled to 50% of the FSM’s disposable retirement pay and an SBP annuity. The cost of the SBP annuity would be split equally between the FSM and the applicant as determined by DFAS. c. Defense Finance and Accounting Service (DFAS) letter dated 14 January 2010 reflective of the FSM being informed of the applicant’s submission of the court order providing entitlement to a portion of his retirement pay. Payments would be initiated within 90 days of his retirement. d. DFAS letter dated 27 April 2010 reflective of the FSM being informed that the applicants entitlement to a portion of his retirement pay would begin in June of 2010 with the first payment being distributed in July of 2010. e. Claims Appeals Board Reconsideration Decision dated 24 April 2013 reflective of DFAS appealing the decision of DOHA to grant relief resulting in the continued entitlement to the SBP annuity of the applicant citing that the decision made by the AFBCMR was invalid. The request for reconsideration of this case was denied. The details of this argument and the Appeals Boards conclusion is further provided in its entirety for this Boards review within the supporting documents. f. Death Certificate dated 15 June 2018 reflective of the passing of the FSM. g. Letter to her Congressional Representative dated 9 July 2018 reflective of the applicant seeking assistance with obtaining entitlement to the SBP annuity in accordance with her issued “Constituted Pension Order.” h. Defense Finance and Accounting Service letter dated 24 July 2018 reflective of the applicant being notified that she was being denied entitlement to the SBP annuity because the FSM failed to change his SBP election within one year of their divorce nor was a deemed election done within the same time provisioned time. i. DFAS letter dated 16 August 2018 reflective of their response to the applicants Congressional Representative regarding their decision to deny entitlement to the SBP annuity citing the information contained within 3h. above. j. DD Form 2656 (Survivor Benefit Plan/ Reserve Component (RC) SBP Request for Deemed Election) dated 17 August 2018 reflective of the applicants request to make deemed election as the former spouse of the FSM pursuant to their divorce decree. k. Authorization for Release of Records and Information dated 21 August 2018 reflective of the applicant authorizing release of any and all information, pertaining to her, in the possession of DFAS and the DOHA to her attorney. l. Midwest Law – Military & Veterans letter dated 22 August 2018 reflective of counsels submitted claim to DFAS requesting that they waive the time limitation to make a deemed election on behalf of the applicant, accept her submitted DD Form 2656-10, resulting in her entitlement to the SBP annuity. m. Claims Appeals Board Reconsideration Decision dated 20 December 2018 reflective of a previous case wherein the applicant was denied entitlement to the SBP annuity citing that despite the court order providing entitlement, the FSM failed to enroll in the SBP prior to retirement and the applicant also failed to make a deemed election within the same time provision. As such DFAS’s decision to properly deny the claim was valid. This decision was therefore upheld by DOHA. n. DFAS letter dated 15 March 2019 reflective of the DOHA’s response (Administrative Report) to the applicant’s appeal of DFAS’s decision to deny entitlement to the SBP annuity wherein it is stated that since the FSM and the applicant were divorced prior to his retirement he would have been required to make an election of former spouse under the SBP. In absence of doing so, the FSM was automatically enrolled with coverage provided for his spouse/and or eligible children upon retirement. The FSM’s records are void of documentation reflective of him making a former spouse election. Further, there is no documentation reflective of the applicant making a deemed election within 1 year of their divorce. Despite the applicant being awarded former spouse SBP coverage in the Constituted Pension Order, required action by either the FSM nor the applicant was executed as required. As such, DFAS had no other option but to deny the applicant’s claim for entitlement to the SBP annuity. o. DFAS letter dated 18 March 2019 advising the applicant of the Administrative Report provided in 3n. above and her ability to file a rebuttal or request for an extension within 30 days. p. Midwest Law – Military & Veterans letter dated 16 April 2019 reflective of counsels submitted rebuttal of the Administrative Report wherein he contests that there were compelling equitable reasons for DOHA to waive the time limitations to make an election under the SBP annuity resulting in the applicants entitlement to receive payment that was previously being withheld from the FSM’s retirement pay. q. Appeal Decision dated 27 September 2019 reflective of the applicant’s submitted rebuttal being denied for the reasons provided within 3n. above. Further she was advised that the request was outside of their jurisdiction. Therefore she was redirected to the ABCMR to request relief by correcting the FSM’s records. 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the terms of the applicant’s divorce decree with the FSM directing the FSM elect that the full amount of his monthly retired pay be paid towards the SBP annuity, the cost of which would be split amongst both parties, the Board concluded there was sufficient evidence to show an injustice (based upon the FSM failing to submit a new SBP election changing the election from spouse to former spouse). As a result, the Board recommended granting the applicant’s requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 changed his SBP election from spouse to former spouse on 1 September 2009 (immediately after his divorce) and the request was received and processed by the appropriate office in a timely manner. 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, United States Code (U.S.C.): a. Section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses Protection Act (USFSPA) relating to the Survivor Benefit Plan (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. b. Section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title. c. Section 1450(f)(3)(A), permits a former spouse to make a written request that an Survivor Benefit Plan (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. d. Section 1448 states that a person who is eligible to participate in the plan under paragraph and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects with his spouse's concurrence, if required, not to participate in the plan before the first day for which he is eligible for that pay. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. 2. Army Regulation (AR) 600-8-7 (Retirement Services Program) states that all Active Army Soldiers will receive the DA pre-retirement briefing, including a SBP briefing, at least 12 months before their retirement dates or for medical retirements at the start of the medical retirement process. In cases where a Soldier requests to retire in less than 12 months, the Soldier will attend the next group preretirement brief or receive an individual pre-retirement brief from a Retirement Services Officer. Married Soldiers may not decline, without the written, notarized concurrence of their spouses, to participate in SBP, to provide an annuity for the Soldier’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for their spouses. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001684 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1