BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150012987 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 BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150012987 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20140008412, dated 12 March 2015. __________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. BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150012987 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 reconsideration of her previous request for correction of the FSM's records to show he enrolled in the Survivor Benefit Plan (SBP) and changed his election from spouse to former spouse so that she may be entitled to an annuity. 2. The applicant states she fulfilled the statutory requirements relating to a deemed election that allows her to collect benefits under the SBP as decreed in the Amended Final Judgment of Dissolution of Marriage Order, dated 25 April 2006. She contacted the Defense Finance and Accounting Service (DFAS) after the FSM's death in 2013 to initiate SBP payments and she was told the FSM's records must be corrected through the Army Review Boards Agency (ARBA). ARBA denied her application because the Amended Final Judgment of Dissolution of Marriage Order did not explicitly refer to the SBP and it only referenced the Department of Veterans Affairs (VA) survivor plan. She discovered additional evidence from her attorney that clearly indicated that the VA survivor plan noted in the order did indeed intend to refer to the SBP. 3. The applicant provides a letter from her attorney. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140008412 on 12 March 2015. 2. The applicant provided documentation not previously considered by the Board. This is new evidence and will be considered by the Board. 3. The FSM was inducted into the Army of the United States on 1 November 1963. On 9 March 1966, the FSM was placed on the Temporary Disability Retired List (TDRL). 4. On 30 August 1968, the applicant and the FSM were married. 5. On 30 November 1970, he was removed from the TDRL and permanently retired by reason of disability on 1 December 1970. 6. In a letter from the U.S. Army Finance Support Agency, dated 22 September 1975, subject: Retired Serviceman’s Family Protection Plan (RSFPP) or SBP, the agency stated the FSM made an election under the above plan to provide an annuity for his surviving eligible dependents. The agency received notification that he waived retired pay in full in favor of compensation from the VA. The letter further stated that if a member who had elected to participate in the RSFPP or SBP waived retired pay for VA payments, he was required by Federal statute to maintain premium payments on a current basis. Payments should be made by check, bank draft, or money order drawn payable to Retired Pay Operations. If the FSM preferred, he could authorize the VA to withhold the monthly premiums for his compensation and forward the payments to their office. Payment of his monthly cost of $5.65 was due on the last day of each month. 7. In an undated VA letter, the VA certified the FSM was in receipt of compensation at a rate of 50 percent, or $695.00 a month. The VA compensation was in lieu of military retired pay. 8. An SBP/RSFPP Premium Statement from DFAS Military Retirement Pay for the month/year of March 2005 shows the FSM was paying monthly SBP premiums in the amount of $12.44 and he had a no overdue balance as of the statement date. 9. The applicant provided a letter, dated 28 October 2005, wherein her attorney advised the FSM's attorney that the applicant had reviewed the Settlement Agreement and demanded several changes including receipt of SBP benefits. 10. On 25 April 2006, the applicant and the FSM divorced. Paragraph 9 of their Amended Final Judgment of Dissolution of Marriage states, "The wife shall be designated the sole beneficiary of the Husband's Veterans Affairs Survivor Plan." 11. On 5 September 2006, the applicant notified DFAS of her divorce and entitlement to the SBP. In her letter she listed her divorce papers as an enclosure. Additionally, she requested that DFAS notify her of any further action. The certified mail return receipt is date stamped 11 September 2006. On 6 November 2006, the applicant again notified DFAS of her divorce by fax. In her letter she stated she was "deeming the election for the SBP" and notifying them within 1 year of her divorce as procedure dictated. She provided a return receipt from DFAS (Legal Garnishment Office), date stamped 18 June 2010. 12. The FSM died on 12 November 2013. The death certificate shows he was married and lists someone other than the applicant as his spouse. 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. An election, once made, is permanent and irrevocable except as provided for by law. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Title 10, U.S. Code, chapter 73, provides that a spouse loses status as an SBP beneficiary upon divorce; however, the means by which the divorced (former) spouse may receive a survivorship annuity are: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) the election is made to comply with a voluntary written agreement related to a divorce action and that voluntary agreement is part of a court order for divorce, dissolution, or annulment. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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. Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option. DISCUSSION: 1. The FSM was permanently retired by reason of disability on 1 December 1970. Evidence shows he elected VA compensation in lieu of military retired pay. As such, he was required to pay monthly SBP premiums. The evidence indicates his payments were "caught-up." He and the applicant were divorced on 25 April 2006. The applicant notified DFAS of their divorce, provided them with a copy of the divorce decree showing her entitlement to SBP on 5 September 2006. 2. The Amended Final Judgment of Dissolution of Marriage Order indicated the applicant would be designated as the sole beneficiary of the FSM's VA survivor plan. It did not reference the SBP. The applicant provided a letter wherein she requested through her attorney several changes including adding receipt of SBP benefits to their Settlement Agreement. She provided no evidence to indicate those changes, if any, were made to the agreement and the final decree remained silent as to SBP. Since there was no mention of retired pay SBP in the divorce decree, DFAS considered her attempt to deem the military retired pay SBP election as invalid. 3. SBP elections are made by category, not by name. As long as the applicant was the FSM’s spouse, she was the SBP beneficiary. Once they divorced she was no longer a beneficiary. Evidence indicates the FSM was married at the time of his death to someone other than the applicant. Absent an election changing previous spouse coverage to former spouse due to remarriage, his widow obtained a vested interest in the SBP on their first wedding anniversary. When he died on 12 November 2013, his widow became the eligible beneficiary by law. 4. Even if otherwise inclined to grant relief, the Board will not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law. The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current widow was a party, divesting the current spouse of her interest in the SBP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012987 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012987 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2