BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20150018440 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 BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20150018440 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 applicant made a timely Survivor Benefit Plan election for former spouse coverage on or about 18 October 1999, and that the election was received and processed in a timely manner by the appropriate DFAS office. ___________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: 25 May 2017 DOCKET NUMBER: AR20150018440 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 requests correction of his records to show he elected to provide a Reserve Component Survivor Benefit Plan (RCSBP) annuity for his former spouse in accordance with a court order. 2. The applicant states, in effect: a. He married V_ G_ on 30 December 1978 and they divorced on 16 September 1999. As part of their settlement, it was determined V_ would receive 50% of his military retirement and be named as his survivor. b. He and V_ G_ filed what they thought was the proper paperwork with the Defense Finance and Accounting Service (DFAS) in October 1999. They have certified receipts that this paperwork was received by DFAS. Upon his retirement in 2013 [after reaching 60 years of age], the paperwork he received with his first retirement check appeared to show he and V_ were still married, with SBP being taken out of each check. c. They approached the attorney who processed their divorce. This contact resulted in another court appearance and the filing of a new qualified domestic relations order (QDRO). At that point, they discovered that V_ was no longer eligible to receive an SBP annuity as a deemed election for SBP was not filed within one year of their divorce. Their attorneys filed forms with DFAS in October 1999, and they still have copies of the returned certified receipts. They assumed at that time that all was in order for his retirement. 3. The applicant provides: * Certificate of Person Performing Marriage Ceremony, issued in Calloway County, KY on 30 December 1978 * his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), issued by the U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO on 5 August 1998 * DD Form 1883 (SBP Election Certificate), dated 1 September 1998 * Property Settlement Agreement, issued by the Jefferson Family Court, Jefferson County, KY on 16 July 1999 * Final Decree of Dissolution of Marriage, issued by the Jefferson Family Court, Jefferson County, KY on 16 September 1999 * QDRO, issued by the Jefferson Family Court, Jefferson County, KY on 18 October 1999 * letters from his attorney to the Defense Finance and Accounting Service (DFAS) – Cleveland Center (DFAS – Cleveland), dated 22 October 1999 (2) and 29 May 2003 * a letter from the Retirement and Separations Branch, AR-PERSCOM, to the applicant's attorney, dated 18 August 2003 * Orders C10-291015, issued by the U.S. Army Human Resources Command (HRC) on 10 October 2012 * DD Form 2293 (Application for Former Spouse Payments from Retired Pay), dated 14 April 2013 * letters from DFAS – Cleveland, dated 25 April and 23 May 2013 * U.S. Postal Service Domestic Return Receipt, dated 16 July 2013 * a letter from his attorney to his former spouse, dated 11 September 2013 * a letter from his former spouse to DFAS – London, KY (DFAS – London), dated 12 September 2013 * a letter from DFAS – London to his former spouse, dated 21 October 2013 * Agreed Order, issued by the Jefferson Family Court, Jefferson County, KY on 21 August 2014 * DD Form 2656-1 (SBP Election for Former Spouse Coverage), dated 29 July 2015 * Agreed Military Qualifying Court Order (MQCO) for Retired Members, issued by the Jefferson Circuit Court, KY on 12 August 2015 * a letter from his former spouse to DFAS – London, dated 12 August 2015 * U.S. Postal Service Certified Mail Receipt, dated 13 August 2015 * DFAS – Cleveland (DFAS-CL) Form 7220/148 (Retiree Account Statement (RAS)), for new pay due 31 July 2015 and 1 October 2015 * DA Form 5016 (Chronological Statement of Retirement Points), dated 30 August 2016 CONSIDERATION OF EVIDENCE: 1. The applicant was born on 7 March 1953 and married on 30 December 1978. After spending time in the U.S. Navy and U.S. Navy Reserve, he enlisted in the U.S. Army Reserve (USAR) on 10 May 1980. 2. The applicant received his Twenty Year Letter, dated 5 August 1998, which notified him of his eligibility for retired pay on application at age 60. Additionally, he was notified of his eligibility for, and the requirements for participation in, the RCSBP. 3. A DD Form 1883, dated 1 September 1998, shows the applicant elected full and immediate RCSBP coverage for his spouse and children within 90 days of receiving his Twenty Year Letter. 4. The applicant was retired from the USAR on 13 July 1999. 5. The applicant's Property and Settlement Agreement, dated 16 July 1999, shows he and his wife were living separate and intended to live separate and apart in the future. He was still legally married at this time; however, the agreement ordered that his spouse be designated as his surviving spouse with survivorship interest in his retired pay. 6. The applicant was granted a divorce on 16 September 1999. His Final Decree of Dissolution of Marriage shows the judge ordered him to designate his former spouse with survivorship interest in her share of his retired pay. 7. A QDRO, dated 18 October 1999, ordered that in the event of the applicant's death, the former spouse shall be treated as his surviving spouse under the SBP. The former spouse's attorney sent a letter to DFAS – Cleveland on 22 October 1999, in which he included a DD Form 2293 with supporting documents to ensure the former spouse received a share of the applicant's military retired pay. The attorney addressed a second letter to DFAS – Cleveland, requesting the applicant's former spouse be named as the beneficiary for the applicant's SBP annuity. 8. The former spouse's attorney addressed a letter to DFAS – Cleveland on 28 May 2003 requesting confirmation of the former spouse's SBP status. The attorney asked DFAS to contact him if additional documentation or information was needed. 9. It appears the former spouse's attorney requested RCSBP information from the Retirement and Separations Branch at AR-PERSCOM. By letter, dated 18 August 2003, the Supervisor of the Retirement and Annuities section replied to a telephonic inquiry concerning the applicant's RCSBP, and the deemed election of the former spouse for coverage. The official stated they [AR-PERSCOM] did not have copies of the SBP election documents; however, they confirmed DFAS – Cleveland's Garnishment Office was sent the former spouse's deemed RCSBP election. 10. Orders C10-291015, issued by HRC on 10 October 2012, show the applicant was placed on the Retired List on 7 March 2013 (his 60th birthday), after which he was authorized retired pay. 11. A DD Form 2293, dated 14 April 2013, shows the applicant's former spouse requested a direct payment of 50 percent of the applicant's retired pay. The request was made in accordance with the applicant's divorce settlement agreements. The DD Form 2293 does not include RCSBP elections. 12. DFAS – Cleveland replied to the former spouse's request by letter on 25 April 2013. DFAS informed her they could not approve her application at that time and notified her what documents were needed to complete her request. The applicant's RCSBP was not referenced within the letter. 13. DFAS – Cleveland acknowledged receiving the former spouse's DD Form 2293 and supporting documents on 23 May 2013. In addition, DFAS instructed the former spouse to make a deemed election for former spouse SBP coverage using a DD Form 2656-10 (RCSBP Request for Deemed Election) within one year of the date of their divorce or other court order requiring SBP coverage for her. DFAS provided the DFAS – London address for her to submit the deemed election and the DFAS – London telephone number to call if she had any questions. 14. A U.S. Postal Service domestic return receipt shows DFAS – London received mail from the former spouse on 16 June 2013. There is no evidence of what specifically DFAS – London received in reference to the mail receipt. 15. The applicant provides a letter written by his former spouse's attorney on 11 September 2013. In the letter, the attorney informed the former spouse he spoke with DFAS, who confirmed she was considered a former spouse under the SBP pursuant to her deemed election. 16. In a letter dated 21 October 2013, DFAS – London informed the applicant's former spouse: a. A deemed election request must include a court order that specifically requires the member to elect coverage on behalf of his former spouse, and the court order may not limit or qualify the former spouse SBP coverage in a manner contrary to federal law. b. Federal law specifies SBP costs can only be deducted from a member's retired pay; a court order that specifies SBP costs are to be deducted from the former spouse's portion of the member's retired pay is contrary to federal law. c. DFAS cannot establish former spouse SBP coverage on the basis of a deemed election request until a modified court order is received, specifically stating the former spouse is the beneficiary of the member's SBP. Once the court order is obtained, the former spouse has one year from the date of the order to make a deemed election. If the order is more than one year old, DFAS will not be able to establish former spouse SBP coverage. 17. An Agreed Order by the Jefferson Family Court, dated 21 August 2014, shows the applicant and former spouse adjusted aspects of their divorce settlement with respect to the SBP. The Agreed Order states, in effect, the former spouse's survivorship interest in her share of his military pension shall be and hereby is modified to provide that the former spouse shall be and is designated surviving spouse with survivorship interest in her share of the member's military pension in the case of his death; the parties shall share equally in the cost of any survivorship benefit fee incurred. 18. The applicant provides his RAS, effective 22 July 2015 with a pay due date of 31 July 2015, which shows he was paying for spouse-only SBP coverage instead of former spouse SBP coverage. A DD Form 2656-1, dated 29 July 2015, shows he requested former spouse SBP coverage, acknowledged he was not currently married, and the election was being made pursuant to the requirements of a court order. The applicant, the former spouse, and witness signed the DD Form 2656-1. 19. The MQCO for Retired Members, dated 12 August 2015, provides that the applicant's former spouse shall be his irrevocable beneficiary of the SBP annuity. He was also ordered to make the necessary election in a timely manner and execute such paperwork as is required. 20. On 13 August 2015, the applicant's former spouse's attorney sent DFAS – Cleveland an SBP deemed election request listing the following enclosures: * MQCO * Agreed Order, dated 21 August 2014 * Property Settlement Agreement * Final decree of Dissolution of Marriage * DD Form 2651-1 * DD Form 2293 21. The applicant provides his RAS, effective 1 September 2015 with pay due 1 October 2015, which shows no SBP coverage payments were taken out of his retired pay. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 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 Uniformed Services Former Souses 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 one 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 one year of the date of the court order or filing involved. DISCUSSION: 1. The applicant's request for correction of his military record to show he elected RCSBP for his former spouse was carefully considered. He contends attorneys assisted him with submitting what he thought was the correct paperwork in October 1999; however, he noticed SBP premiums for spouse coverage was deducted when he first received retired pay in 2013. 2. The applicant received his Twenty Year Letter and elected full spouse and children SBP coverage within 90 days of receiving the letter. He was retired on 13 July 1999. The evidence of record confirms he was legally divorced on 16 September 1999, and did not remarry. 3. The former spouse's attorney sent documents to DFAS on 22 October 1999, requesting former spouse SBP coverage for his client. Federal law requires either the member to request former spouse SBP coverage within one year of the divorce decree, or the former spouse to deem an election. There is no evidence the applicant requested former spouse coverage within one year as required but there is evidence the former spouse made a timely deemed election. 4. The applicant's former spouse and her attorney made several attempts over the years with DFAS to deem her as the former spouse on his SBP. On 21 October 2013, DFAS – London informed the applicant's former spouse that they could not establish former spouse SBP coverage unless a modified court order was received specifically stating she is the beneficiary of the member's SBP coverage. 5. The applicant and the former spouse obtained an Agreed Order specifically addressing the SBP on 21 August 2014. The Agreed Order provided that the former spouse shall be and is designated surviving spouse with survivorship interest. 6. The applicant's retiree account statement for the month of July 2015 shows he paid spouse only SBP coverage. On 29 July 2015, he completed a DD Form 2656-1 electing former spouse SBP within one year of the 21 August 2014 court order. His RAS for 1 October 2015 shows no SBP coverage payment was deducted from his retired pay. 7. The applicant followed the federal law requirement by electing former spouse SBP coverage on 29 July 2015, which was within one year of the date of the court order. He and his former spouse authenticated the form and had it signed by a witness. 8. The spouse attempted to make a deemed election as required by law when she and the applicant were divorced in 1999. Former spouse SBP deductions should have commenced when the applicant started to receive retired pay in 2013. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018440 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2