BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001251 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: 17 August 2017 DOCKET NUMBER: AR20160001251 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. BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160001251 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 changed his Survivor Benefit Plan (SBP) election from spouse to former spouse based on their divorce decree and then payment of the SBP annuity. 2. The applicant states it is an injustice to fight for 30 percent of the property settlement set forth by a court of law because the FSM did not fulfill his legal obligation per the court order. 3. The applicant provides: * Marriage License * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Reassignment Orders Number 037-003 * Mediation Agreement * Decree of Dissolution of Marriage * Certificate of Death * Applicant's Certificate of Marriage * Applicant's Social Security Card * Applicant's Certificate of Birth * Form W-4P (Withholding Certificate for Pension or Annuity Payments) * Direct Deposit Authorization (Fifth Third Bank) * Army National Guard Current Annual Statement * DD Form 2656 (Data for Payment of Retired Personnel) * Self-authored statements CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM's service record shows he was born on 25 June 1952. He married the applicant on 5 July 1980. After having prior service in the U.S. Air Force and U.S. Air Force Reserve, the FSM enlisted in the Indiana Army National Guard on 16 March 1994. 3. The FSM was ordered to active duty on 27 February 2003 in support of Operation Enduring Freedom. 4. The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) on 17 March 2005. 5. On 2 May 2005, the FSM completed a DD Form 2656-5 and elected SBP coverage for spouse only, Option B (Deferred Annuity), electing to provide an annuity beginning on the 60th anniversary of his birth should he die before that date, or on the day after date of death should he die on or after his 60th birthday. The applicant, "Carol," is listed as his spouse. 6. The FSM was released from active duty on 18 February 2007 and transferred back to his Indiana Army National Guard unit. On 19 February 2007, he was discharged from the Indiana Army National Guard after not being selected for retention by a qualitative retention board. 7. The FSM and the applicant entered a Mediation Agreement on 16 September 2009. Paragraph 1(d) of the agreement states, "30% of the Husband's military pension. The parties will cooperate in providing documents and signing documents necessary for the Wife's counsel to prepare the Court Order transferring said pension benefits. " SBP is not mentioned in the agreement. 8. The FSM and the applicant were divorced on 21 September 2009. 9. The FSM's service record is void of evidence indicating he made a voluntary election or the applicant requested a deemed election to change his SBP coverage from spouse to former spouse within 1 year of their divorce. 10. The FSM remarried on 11 February 2010. His marriage certificate shows "Angela" as his spouse. 11. On 3 June 2010, the FSM completed a DD Form 2656-6 (SBP Plan Election Change Certificate) requesting a change in his SBP election. He indicated he was divorced. He now requested spouse and child(ren) coverage. This form shows his spouse as "Angela" and lists two dependent children. 12. The FSM died on 26 September 2011. His death certificate shows he was married to "Angela" at the time of his death. 13. By letter dated 20 December 2013, the applicant contacted Defense Finance and Accounting Service (DFAS) stating that her divorce decree specified she was designated former spouse beneficiary for payment of the FSM's retired/retainer pay. The applicant stated that, in the agreement, she is entitled to collect monthly payments equal to 30 percent. All policies and forms were filed with their office from her lawyer at the time of dissolution of marriage in 2009. She requested payments of monthly benefits. 14. The applicant provided a self-authored statement in which she stated the following: a. She wrote to DFAS requesting payment of retired pay based on her property settlement, dissolution of marriage. DFAS responded that she had to wait until age 60, so she contacted them again one month prior to reaching age 60. DFAS informed her that the FSM did not open the retirement and there was nothing for her to receive. She was advised to contact a representative at Fort Knox, KY who assisted her with this situation. b. She should not be held accountable for something the FSM failed to complete. The court records will show the FSM did not comply with most of what was outlined in the Dissolution of Marriage until he was forced to by the judge. The court garnished his wages in order to get resolution. c. DFAS informed her and her attorney that a specific form was needed to honor the court document and to get a signature from the judge. DFAS did not inform them that an SBP form was needed. Once they found the SBP form, it was taken before a judge, signed and sent to DFAS. She requests this Board review her paperwork, court documents, and honor her property settlement. This settlement is court ordered and agreed upon by her and the FSM. d. She believes she should not incur any more legal fees to accomplish payment from the property settlement. This would not even be an issue if the FSM lived long enough to collect even one check from his retirement per the Army and DFAS. 15. In a 3 November 2016 email, a representative from DFAS informed an ABCMR staff member that their office had no record and no documentation of any kind regarding the FSM's retired pay. The representative stated that the FSM was probably not 60 years old and the applicant needed to contact the U.S. Army Human Resources Command, Fort Knox, to see if there was an SBP election. If the FSM was not 60 years old (at time of death), there will be no division of 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 family members. Elections are made by category, not by name. 2. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 3. 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. 4. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 5. 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. 6. 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. 7. 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 evidence of record shows the FSM elected to participate in the SBP for spouse coverage, Option B, deferred annuity. He was married to the applicant at that time. 2. The applicant and the FSM divorced on 21 September 2009. 3. The Mediation Agreement granted the applicant 30 percent of the FSM's military pension. SBP was not cited in the agreement or divorce decree. There is no evidence indicating the FSM voluntarily changed his coverage to former spouse. Further, the applicant was not entitled to submit a deemed election request because the divorce decree did not award SBP. 4. The FSM remarried on 11 February 2010. By law, the current spouse became the lawful beneficiary for SBP coverage on the first anniversary of the remarriage. 5. The applicant was not awarded SBP at the time of her divorce. She was awarded a portion of the FSM's pension. However, since the FSM died on 26 September 2011 prior to reaching age 60, he did not have the opportunity to apply for retired pay. Accordingly, there is no retired pay from which the applicant can be paid the 30 percent she was awarded. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001251 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001251 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2