IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150012597 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: 5 January 2017 DOCKET NUMBER: AR20150012597 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: 5 January 2017 DOCKET NUMBER: AR20150012597 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 former service member (FSM), requests correction of her former husband's records to show her entitlement to the Survivor Benefit Plan (SBP) annuity in accordance with a court order. 2. The applicant states: a.  She was married to the FSM at the time of his retirement and she did not reject the SBP annuity at that time. b.  She had no knowledge that a DD Form 2656-10 (SBP/Reserve Component SBP Request for Deemed Election) was required within 1 year of the court decree for SBP coverage. c.  She and the FSM divorced in 2001 and the divorce decree stated she was to remain eligible for the SBP annuity. d.  She was not aware the SBP election was not in place until she called the Defense Finance and Accounting Service (DFAS) on another issue. e.  DFAS Customer Service personnel stated the wording in the divorce decree was not clear, so she went to court and received a clarifying order on 6 June 2015. The clarifying order states she is to be named the deemed beneficiary for the SBP. She submitted the clarifying order to DFAS; however, she was informed the request had to be made within 1 year of the divorce decree. f.  She explained she had no contact with DFAS after the decree until approximately 3 years ago because the FSM would not provide the requested information. g.  The FSM willfully refused to cooperate when directed by the courts to provide information to enforce their marital settlement. 3. The applicant provides: * exhibit 1 – DFAS letter, dated 15 July 2015, and DD Form 2656-10, dated 6 July 2015 * exhibit 2 – Court Order, Circuit Court of Cook County, IL, dated 6 July 2015 * exhibit 2-1 – Motion – General Form, Circuit Court of Cook County, IL, dated 11 June 2015 * exhibit 2-3 – Notice of Motion and Certificate of Mailing Filed, Circuit Court of Cook County, IL, dated 6 July 2015 * exhibit 3 – DFAS letter, dated 27 February 2015 * exhibit 3-1 – DD Form 2656-10, dated 26 February 2001 * exhibit 4 – counsel letter to DFAS, dated 6 February 2002 * exhibit 4-1 – counsel letter to DFAS, dated 19 February 2002 * exhibit 4-2 – counsel letter to applicant, dated 1 August 2002, with Circuit Court of Cook County, IL, Petition for a Rule to Show Cause * exhibit 5 – DFAS letter to Applicant dated 4 August 2003 * exhibit 6 – Divorce Decree and Marital Settlement Agreement CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 10 January 1967. 2. On 13 March 1974, the applicant and FSM were married. 3. The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 12 May 1987, shows the following checked boxes in Part III (SBP Election): * block 10 – Are you married? – NO * block 11 – Do you have dependent children? – YES * block 12 – Check one of the following to indicate the type of coverage you desire – Spouse and Dependent Children * block 14a (Name of Spouse) – T____, B____ M. (Applicant) 4. On 31 May 1987, the FSM retired. 5. On 26 February 2001, the applicant and FSM were divorced. On the same date, the Circuit Court of Cook County, IL, County Department-Domestic Relations Division, approved a Marital Settlement Agreement that shows the applicant and FSM separated in 1985 and specifies in Article III (Pensions): a.  The FSM had a U.S. Armed Forces pension and a Teacher's Retirement System of Texas pension and the applicant was entitled to 40 percent of each pension. b.  A Qualified Domestic Relations Order would be placed against the FSM's pensions. c.  The applicant remained eligible for survivorship benefits. 6. On 6 February 2002, counsel for the applicant at the time submitted a copy of the applicant's divorce decree and Marital Settlement Agreement to DFAS. Counsel noted a Qualified Domestic Relations Order was to have been placed against the FSM's retired pay. He further stated the order was never entered and, accordingly, the applicant had not received any funds for the pension commencing on 26 February 2002 (should read 2001). Additionally, counsel requested a copy of the Qualified Domestic Relations Order or applicable document concerning the FSM's retired pay. 7. On 19 February 2002, counsel for the applicant at the time submitted a letter to DFAS in which he advised DFAS of the applicant's divorce and Marital Settlement Agreement executed on 26 February 2001. He further stated that despite several demands upon the FSM's attorney, no Qualified Domestic Relations Order had been executed or received and the FSM was 1 year behind in payments. 8. The applicant provided a copy of a letter from her attorney at the time, dated 1 August 2002, requesting the FSM's address. Attached to the letter was a proposed Petition for a Rule to Show Cause against the FSM. 9. On 4 August 2003, DFAS advised the applicant that her portion of retired/ retainer pay from the FSM under the Uniformed Services Former Spouses' Protection Act could not be approved because the final court order of divorce, separation, or annulment had to be certified by the Clerk of Court within 90 days immediately preceding its service on DFAS. She was given 90 days to provide the required documentation. 10. On 27 February 2015, DFAS advised the applicant that a deemed election request or divorce decree had not been received and that a request to deem an election must be received from the former spouse within 1 year from the date of the court decree which awards the coverage. 11. On 3 March 2015, the applicant submitted a DD Form 2656-10 to DFAS. Item 15 (Remarks) of this form shows she indicated the FSM willfully refused to cooperate with the Domestic Relations Order pertinent to their divorce. 12. The applicant provided a copy of her court order from the Circuit Court of Cook County, IL, dated 6 July 2015, which shows: * the FSM was given notice to appear in court and he did not appear * the applicant was the designated beneficiary for 100-percent or the maximum allowable amount of the FSM's SBP * the FSM was directed to elect SBP benefits on behalf of his former spouse 13. On 15 July 2015, DFAS advised the applicant that a deemed election must be received from the former spouse within 1 year from the date of the court decree which awards the coverage. 14. The FSM's records are void of and the applicant failed to provide evidence regarding the FSM's current marital status. REFERENCES: 1. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf provided the member agreed to provide coverage. 2. 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. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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. 4. 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 divorce decree awarded the SBP to the applicant and specifically ordered the FSM to timely execute all documents necessary to maintain the applicant's designation as a former spouse SBP beneficiary. It appears the FSM did not take the action directed by the court. 2. The applicant and her attorney notified DFAS of the divorce decree within 1 year. 3. Since the FSM's records are void of his marital status at this time, action cannot be taken to prevent a lawful beneficiary from becoming eligible to receive those benefits. To do so would constitute taking without due process of law. 4. If the FSM has remarried and it has been more than 1 year since the marriage, his current spouse would have an interest in the SBP. A court order from a State court of competent jurisdiction over the marriage of the applicant and the FSM, as well as his current spouse to protect her property interests and rights, would be required before any Board action. If the court determined the applicant was the proper SBP beneficiary after a proceeding, the applicant could apply to the Board for reconsideration. In the alternative, the Board may reconsider the applicant's request if she provides a notarized, sworn affidavit stating the FSM has not remarried or, if he has remarried, a notarized statement from the FSM's current spouse renouncing her right to the SBP payment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012597 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2