IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150011668 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 IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150011668 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: a. showing the FSM submitted the necessary documentation to change his SBP election to former spouse coverage prior to his death on 14 September 2014; b. showing DFAS received, accepted as valid, and processed the FSM's SBP election change in a timely manner; and c. paying the applicant the SBP annuity retroactive to 15 September 2014, 1 day following the FSM's death. __________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: 1 December 2016 DOCKET NUMBER: AR20150011668 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 correction of her former husband's records to show he elected former spouse coverage under the Survivor Benefit Plan (SBP). 2. The applicant states: a. Her former husband elected SBP coverage at retirement in August 2012. They divorced on 7 November 2013. Their divorce decree awarded a portion of his retired pay to her as his former spouse. As he was unemployed at the time of their divorce, she agreed to defer collection of her due portion until he achieved gainful employment. b. Her former husband was diagnosed with throat cancer in December 2013, 1 month after their divorce, and died unexpectedly on 14 September 2014 while undergoing treatment. He was very ill due to the adverse effects of the cancer treatment, at times with life-threatening complications, and did not attend to multiple legal requirements. c. Her former husband should have notified the Defense Finance and Accounting Service (DFAS) of their divorce of 7 November 2013 and his intent to continue spousal benefits to his former spouse. Due to his illness and death prior to 1 year from the date of their divorce, notification did not occur. d. She petitions the Board to recognize that the severe illness and subsequent death of her former husband represent mitigating factors in his failure to execute the notification in a timely manner. e. He was not remarried at the time of his death and neither is she. She still had 2 months remaining to deem an election as the former spouse, had DFAS properly advised her at the time of his death that he had not notified that office of their divorce and/or changed his SBP election to former spouse coverage. 3. The applicant provides: * self-authored letter in support of her application, dated 28 June 2015 * marriage certificate, dated 2 June 1992 * DD Form 2656 (Data for Payment of Retired Personnel), dated 26 July 2012 * DD Form 2656-5 (Reserve Component SBP Election Certificate), dated 26 July 2012 * DFAS Retired and Annuity Pay letter, dated 31 May 2013, with Summary of Retired Pay Account and DD Form 2866 (Retiree Change of Address Request/State Tax Withholding Authorization) * legal consultation fee receipt, dated 31 May 2013 * DFAS retired pay inquiry, dated 12 June 2013 * legal representation contract, dated 10 July 2013 * retiree account statement effective 20 June 2013, dated 10 July 2013 * DFAS Retired and Annuitant Pay letter, dated 4 September 2013 * divorce decree, dated 5 November 2013 * medical documents, dated 11 December 2013, 12 December 2013, and 16 December 2013 * medical death summary, dated 14 September 2014 * death certificate, dated 25 September 2014 * death notification letters to DFAS, dated 10 December 2014 and 26 December 2014; with orders and letters of administration, dated 23 September 2014; and DFAS Form 9221 (Notification of Death) * DFAS letter, dated 2 January 2015 * DFAS letter, dated 10 February 2015, with Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), dated 1 March 2015 * administration letter to DFAS, dated 27 June 2015 * support letter, dated 30 June 2015 CONSIDERATION OF EVIDENCE: 1. The FSM was born on 8 July 1952. 2. On 2 August 1972, the FSM enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program with a commitment to enlist in the Regular Army on 8 November 1972. He was discharged from the USAR on 7 November 1972 for immediate enlistment in the Regular Army. 3. On 8 November 1972, the FSM enlisted in the Regular Army. He was appointed as a warrant officer in the USAR on 19 November 1973 with concurrent orders to active duty. 4. On 20 May 1982, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement). 5. On 2 August 1982, he was appointed as a warrant officer in the Army National Guard. 6. On 20 June 1990, he was appointed as a warrant officer in the USAR. 7. The FSM and the applicant married on 2 June 1992. 8. U.S. Army Reserve Personnel Command memorandum, dated 13 March 2002, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), notified the FSM that he completed the required years of qualifying service for retired pay upon application at age 60. a. He was advised of his eligibility to participate in the Reserve Component Survivor Benefit Plan (RCSBP). b. He was advised that a qualified Reserve member who is married will automatically be enrolled in the RCSBP under Option C (Spouse and Children) based on full retired pay unless spousal concurrence is provided to allow one of the following elections: * Option A – defer enrollment until age 60 in connection with his application for retired pay * Option B – enroll and pay an annuity when he would have reached age 60 and – * enroll spouse or spouse and children at less than the maximum level * enroll children only * Option C – enroll and pay an annuity immediately upon his death, but – * enroll spouse or spouse and children at less than the maximum level * enroll children only c. He was advised that he must complete and return the enclosed DD Form 1883 within 90 days of issuance of the 20-year letter. Failure to meet this requirement would result in retention of full coverage for spouse and children. 9. The FSM's records contain a DD Form 1883, dated 15 June 2002, showing he elected spouse and children coverage based on the full amount of retired pay under Option C (Immediate Coverage). The FSM and the applicant signed the form on 15 June 2002. 10. The FSM reached age 60 on 8 July 2012. 11. The FSM's records contain a DD Form 2656-5, dated 26 July 2012, showing he elected spouse only RCSBP coverage based on his full retired pay. 12. The FSM's records contain a DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656, both dated 27 July 2012. His DD Form 2656 shows he designated his spouse, K____ L. J____, as the beneficiary of his unpaid retired pay and he elected spouse-only SBP coverage based on his full gross pay. 13. U.S. Army Human Resources Command Orders C04-393367, dated 19 April 2013, retired him and placed him on the Retired List effective 2 August 2012. 14. A letter from DFAS, dated 31 May 2013, notified the FSM that his retired pay account had been established. The attached Summary of Retired Pay Account itemized his retired pay computation and noted he elected spouse and children RCSBP coverage on 25 June 2002. His Retiree Account Statement effective 31 May 2013 shows SBP costs were deducted from his retired pay for spouse and children coverage. 15. On an unknown date, the FSM notified DFAS that he was getting divorced and requested calculation of his retired pay to determine the portion accumulated during the marital period. 16. A letter from DFAS, dated 4 September 2013, responded to his retired pay computation inquiry and advised him that any change which would affect the calculation of his retired pay must be initiated by the U.S. Army Human Resources Command. 17. The FSM and the applicant divorced on 5 November 2013. The Final Decree of Divorce specified the FSM would receive his military retired pay until he reached age 65 or obtained full-time employment, whichever occurred first; then the applicant would receive a specified amount of the FSM's retired pay. 18. The FSM's medical records show he was diagnosed with malignant basaloid-type invasive squamous cell carcinoma and swelling consistent with lymphadenopathy on 11 December 2013. 19. The FSM died on 14 September 2014 at age 62. His death certificate shows he was divorced at the time of his death and named the applicant as the informant and his former spouse. 20. On 10 December 2014, the applicant notified DFAS of the FSM's death and advised DFAS that she was the beneficiary of the FSM's SBP, and possibly their daughter was a beneficiary as well. She stated she notified the Casualty Assistance Office of the FSM's death within a week of his passing but had not received the expected SBP annuity. 21. On 26 December 2014, the applicant again notified DFAS of the FSM's death and submitted an electronic DFAS Form 9221 wherein she listed herself as the FSM's former spouse. 22. A letter from DFAS, dated 2 January 2015, notified the applicant that the FSM made an SBP election and SBP premiums were deducted from his retired pay, but no SBP claim had been filed. She was advised to provide a copy of their divorce decree. 23. A letter from DFAS, dated 10 February 2015, advised the applicant to submit a Standard Form 1174 to claim the FSM's unpaid retired pay. The applicant provided a Standard Form 1174, dated 1 March 2015. 24. On 27 June 2015, the applicant notified DFAS that she never received the SBP claim packet as the FSM's former spouse. She was not advised that she was required to submit documentation showing the FSM's retired pay – and survivor's benefits by inference – was included in the marital community property and a portion awarded to her. She stated she contacted DFAS telephonically on 25 June 2015 and was informed that her claim for SBP was disallowed, denied, or otherwise rejected and her claim for the FSM's arrears of pay was rejected because she did not complete the claim form properly. 25. The applicant provided a letter of support from a former Soldier and long-time friend of the FSM wherein he indicated the FSM intended to provide for the applicant for the remainder of her life. He stated the FSM's failure to complete the routine paperwork as a result of his unexpectedly aggressive illness should not alter his final wishes to provide for the applicant. REFERENCES: 1. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the RCSBP; RCSBP coverage automatically converts to SBP coverage upon retirement. 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. Public Law 106-398, enacted 30 October 2000, requires written spousal consent for a Reserve service member to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters were issued after 1 January 2001. In other words, failure to elect an option upon receipt of a 20-year letter results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his or her 20-year letter. DISCUSSION: 1. The evidence of record shows the FSM elected RCSBP spouse and children coverage under Option C on 15 June 2002 upon receipt of his 20-year letter. This election is irrevocable; the RCSBP automatically converts to the SBP upon retirement. 2. The FSM retired effective 2 August 2012 and SBP premiums were deducted from his retired pay. 3. The FSM and the applicant divorced on 5 November 2013. Unfortunately, the FSM was diagnosed with an aggressive form of cancer the following month. The attention required in coping with the terminal illness distracted him from attending to several legal matters. He continued to pay SBP premiums for spouse coverage. 4. The FSM died on 14 September 2014, just 10 months following his divorce. Although he continued to pay SBP premiums, he did not submit a request to change his SBP election from spouse and children coverage to former spouse coverage within 1 year of their divorce and the applicant was unaware of her ability to deem an election for former spouse coverage. 5. The evidence clearly shows the FSM's intent to provide SBP coverage for the applicant. It is therefore reasonable to presume he would have submitted the proper documentation to change his SBP election to former spouse coverage had he known it was required. 6. His terminal diagnosis within 1 year of their divorce and his continued payment of SBP premiums support the applicant's claim. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011668 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011668 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2