IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011509 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 IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011509 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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011509 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 the FSM's records to show he did not cancel her Survivor Benefit Plan (SBP) coverage, but rather modified it from "spouse and child" to "former spouse." She additionally requests back payments of the SBP annuity effective the FSM's death. 2. The applicant states, in effect: * without her knowledge, her former husband (the FSM) stopped her SBP coverage in July 1995 * they had been married for 32 years, and were divorced 9 years after his retirement * their divorce was finalized in July 1995; the final divorce decree required the FSM to maintain SBP for the applicant, and named the applicant as the sole, irrevocable beneficiary for so long as he lives, or until the FSM died * the FSM passed away in March 2013, and the applicant learned shortly thereafter of the FSM's adjustment of her SBP coverage; she was never notified by the Army or the Defense Finance and Accounting Service (DFAS) * she would like her coverage reinstated and would be willing to pay any back payments due * it is unjust that the Army and DFAS allowed him to stop her SBP coverage without her knowledge; had she known, she would never have endorsed such a change * she trusted the court order would be followed * she has remained single after the divorce and was on disability prior to receiving social security; she continues to struggle to make ends meet * correcting this injustice would help her meet her financial obligations 3. The applicant provides: * DD Form 1172 (Application for Uniformed Services Identification Privilege Card), dated 8 November 1983 * DA Form 4240 (Data for Payment of Retired Army Personnel), dated 28 August 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 1985 * divorce decree, dated 11 July 1995 * letter from DFAS to the FSM, dated 17 October 1995 * death certificate CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the Army of the United States, the FSM enlisted in the Regular Army on 3 November 1964. He served continuously through reenlistments and extensions, and rose to the rank/grade of sergeant first class/E-7. 2. On 28 August 1985, and in preparation for retirement, he completed a DA Form 4240. He indicated he was married with a dependent child, and he elected to provide full SBP coverage for spouse and children. 3. He retired on 31 August 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 20 years of net active creditable service. 4. The FSM and the applicant divorced on 11 July 1995. There is no indication he remarried. He died on 15 March 2014. The FSM's son was listed as being the informant of his death. 5. In an email, dated 8 July 2016, an official from DFAS essentially states: * there currently is no access to paper records, but according to the Retired Casualty Pay System (RCPS), the FSM initially elected full SBP coverage for spouse and child * his election changed to "no beneficiary" effective 11 July 1995 (the date of the divorce) * in addition to SBP coverage, the applicant was receiving 50 percent of the FSM's disposable pay; this stopped with the divorce * she applied for SBP upon the FSM's death, and provided a copy of the divorce in which the FSM was ordered by the court to provide former spouse SBP coverage * he never made such an election within the required 1 year, and the applicant never deemed the election within 1 year of the divorce; as such, she is not an eligible SBP beneficiary 6. The applicant provides: a. A copy of the divorce decree, dated 11 July 1995. It stipulated the FSM would reflect her as sole and irrevocable beneficiary of his SBP. Additionally, the FSM was required to maintain SBP for the applicant. b. A letter from DFAS to the FSM, dated 17 October 1995, stating an adjustment was being made to his SBP based upon his divorce. It further stated the effective date was 11 July 1995, and, because of the divorce, the FSM's monthly SBP cost was adjusted from $77.61 to $0. REFERENCES: 1. 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. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 3. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage without the member's agreement in those cases where the retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 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 requests, in effect, correction of the FSM's records to show he modified his SBP to provide her coverage as a former spouse, and to provide back pay for the annuity, effective the date of the FSM's death. 2. She was initially an eligible beneficiary of SBP while married to the FSM. a. When they divorced, the court not only ordered the FSM to provide SBP coverage for the applicant, he was ordered to ensure it was maintained. (1) The evidence of record shows he failed to follow the court's directive. (2) Additionally, by law, the FSM was required to notify DFAS whether there was a court order to provide SBP coverage. It is apparent he failed to do so. b. Although the FSM failed both to follow the mandate of the court to ensure his former spouse had SBP coverage, and failed to notify DFAS of the court's directive, the remedy for these failures would not be through this Board, but rather through civil action. (1) Orders from State and local courts is not binding on the Federal government. (2) The Board's role is to correct military records where an injustice or error has occurred in a service member's record. In this case, there is no evidence it was the intent of the FSM to provide SBP coverage to his former spouse, and, because of his death, such intent could not be fulfilled. As such, there is no basis for the Board to take action. 3. Had the FSM elected to provide former spouse SBP coverage, the law requires him to make and submit this election within 1 year of the divorce. Alternatively, the law permits a former spouse to deem this election, but it too must be done within 1 year of the divorce. Neither of these two events took place. 4. Based on the foregoing, there does not appear to be sufficient evidence to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011509 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011509 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2