BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003687 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: 12 October 2017 DOCKET NUMBER: AR20160003687 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: 12 October 2017 DOCKET NUMBER: AR20160003687 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 the FSM's records to show she is the eligible beneficiary to receive a Survivor Benefit Plan (SBP) annuity as a former spouse. 2. The applicant states the FSM failed to follow Army regulations and their court-ordered divorce decree regarding the FSM's responsibility to enroll in the SBP. a. She states she was not informed of the requirement for her to sign the FSM's SBP application. She was never presented with any documentation by the FSM or the military giving her the opportunity to accept or decline SBP. It is not clear to her how the FSM was able to process his retirement application without involving her in the SBP decision. She adds that the FSM did not share information pertaining to his military affairs with her and that he was required by court-order to pay her a portion of his retired pay. b. She states the FSM died on 19 March 2013. Her son assisted her in obtaining necessary documents for funeral arrangements and she notified the Defense Finance and Accounting Service (DFAS) of the FSM's death. She then learned the FSM had terminated his participation in the SBP. Upon his death, DFAS terminated payment of the portion of the FSM's retired pay she had been receiving. She initiated an inquiry to DFAS asking for an explanation, but she has not received a reply. She adds that she has been unable to obtain copies of the documents required to prove that she did not sign anything stating that she did not want the SBP benefit. c. She states the Department of Defense and the Department of the Army have rules and requirements that outline the procedures for compliance with the Uniformed Services Former Spouses Protection Act (USFSPA). She also states that an unfair practice has caused her current situation and she is being forced to suffer financial hardship as the result of poor quality control practices. She adds, in late 2013, the Department of Veterans Affairs (VA) notified her that she was not entitled to the FSM's service-connected disability pay. 3. The applicant provides a self-authored statement, dated 17 December 2015, and a sworn statement, dated 8 December 2015 (both summarized above), and copies of: * their marriage license and certificate * the FSM's discharge documents * a certificate of appreciation * a Nunc Pro Tunc Order * two medical records * the FSM's death certificate * seven letters CONSIDERATION OF EVIDENCE: 1. The FSM was born in December 1939. a. He had prior enlisted service in the U.S. Air Force (USAF) and in the Air Force Reserve during the period 1 February 1955 to 2 February 1964. b. The FSM and the applicant (Leila Mae W___) married on 4 March 1962. 2. On 11 December 1964, the FSM enlisted in the Regular Army (RA). Through a series of reenlistments in the RA, he continued to serve on active duty and he attained the rank of sergeant first class/pay grade E-7. 3. A DA Form 2339 (Application for Voluntary Retirement), dated 1 February 1980, shows the FSM requested voluntary retirement effective 1 August 1980. It also shows, in pertinent part, in item 30 (Statement of Understanding), "I have been briefed concerning the SBP. I understand that I will automatically be in the plan and will pay the full cost of coverage for my wife, and children if applicable, unless I submit an election form to the contrary prior to my retirement." The applicant and a Retirement Services Officer signed the document. 4. A DD Form 4240 (Data for Payment of Retired Army Personnel), completed by the FSM on 19 May 1980, shows in: * Part IV (SBP Election) – * item 13 (Are you married?), an "X" in the "Yes" block * item 14 (Do you have dependent children?), an "X" in the Yes" block * item 15 (Type of coverage desired), an "X" in the block indicating "Spouse and dependent children" * item 16 (Do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay?), an "X" in the box for "Reduced Amount" and the entry "$400.00" * item 17 (Name of Spouse and Dependent Children), the applicant's name and her date of birth, along with the names and dates of birth of his two children * Part VIII (Certification), the FSM and a witness each placed their signature on the document on 19 May 1980 * Part IX (SBP Certificates), "Spouse not available for counseling: informed by letter date: 22 May 1980 (copy attached)." It also shows a counselor in the Retirement Branch, Installation Support Division, Fort Carson, CO, signed the certificate on 22 May 1980. 5. Headquarters, Fort Carson, and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, Orders 084-77, dated 28 April 1980, released the FSM from active duty on 31 July 1980 and placed him on the retired list in the U.S. Army Reserve Control Group (Retired) effective 1 August 1980. 6. In support of her application the applicant provides the following documents. a. State of South Carolina, County of Charleston, Marriage License, issued to the FSM and applicant on an unspecified date. Also, a certificate that shows Reverend S.T. S___ performed the marriage ceremony of the FSM and the applicant on 4 March 1962. b. Five DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) that document the FSM's honorable active service in the USAF and in the RA. c. DA Form 3891 (Certification of Appreciation) issued to the applicant on the occasion of the retirement of the FSM from active status with the U.S. Army. d. District Court of El Paso County, Texas, 65th Judicial District, Number 81-6547, Nunc Pro Tunc Order Correcting Clerical Error (filed by the FSM with the applicant named as respondent), amended the Decree of Divorce entered on 18 April 1984. (The applicant did not provide a copy of the Decree of Divorce.) The document shows, in pertinent part: (1) The FSM was ordered to pay the applicant child support in an amount equal to fifty percent (50%) of his net monthly disposable military retirement and retainer pay, as defined in Title 10, U.S. Code, section 1001, beginning January 1984 and each month thereafter until their son (Mark T. D____, born in December 1969) attained the age of 18 or was emancipated. It also shows the parties had entered into an agreement for support of the child beyond his 18th birthday. The FSM was ordered to execute an allotment in order to make the applicant's share of his military retirement benefit payable to her. (2) The FSM was also ordered to ensure the applicant and the children born of the marriage were issued military dependent identification cards with entitlement to post exchange, commissary, dental, and medical privileges. (3) The document provided by the applicant is an 8-page document. A thorough review of the document failed to reveal evidence that the applicant was awarded an interest in the FSM's SBP benefit as a former spouse. The signature (last) page shows it was signed and filed on 13 June 1984. e. DFAS, Indianapolis, IN, letter, dated 9 December 1991, that notified the applicant that her request for direct payments pertaining to the FSM's retired pay pursuant to the court order and supporting document she provided would be honored by the U.S. Army in the monthly amount of $428.55 beginning end-of-month December 1991. f. Two medical records that show the applicant had two hip replacement procedures (on 23 February 2006 and also on 4 December 2006). g. State of California, Certification of Vital Record, Sacramento County, Certificate of Death, that shows the FSM died on 19 March 2013, he was divorced (no surviving spouse), and Elizabeth M____ (sister) was listed as the informant of the FSM's death. h. Two undated letters (circa 2013) addressed to the VA and to DFAS in which the applicant inquired into her eligibility for any VA or military benefits related to the FSM's military service. i. A letter addressed to DFAS, dated 26 October 2013, in which the applicant notified DFAS of the FSM's death and requested information concerning the process to receive the SBP benefit as his former spouse. j. VA Regional Office, Pension Management Center, St. Paul, MN, letter, dated 11 March 2014, that notified the applicant that her claim for dependency and indemnity compensation, death pension, and accrued benefits was denied. k. An undated letter (circa June 2014) that shows the applicant submitted a DD Form 2656-7 (Verification for SBP Annuity), along with supporting documents, pertaining to her claim for the FSM's SBP benefit. l. A letter, dated 19 August 2015, with United States Postal Service delivery receipts of previous correspondence, in which the applicant inquired into the status of her previous requests for benefits related to the FSM's military service. 7. In connection with the processing of this case, DFAS was asked to verify information relevant to the FSM's SBP election, coverage, and participation. A DFAS official provided copies of the following documents. a. Superior Court of California, County of Yolo, Judgment (Family Law), that shows the marriage of the FSM (petitioner) and Audrey Lee D___ (respondent) was dissolved on 19 December 2003. The document was filed on 21 July 2003. b. A letter signed by the FSM, dated 6 April 2010, that forwarded a copy of his divorce document. c. DFAS, Comment Log, posted 22 April 2010, that shows, "Member has no benfy [beneficiary] at retirement. He married on 17 December 2000 and sent his marriage certificate to this center, after the one year period (after the first anniversary), his letter was dated 4 January 2001. Spouse was not added as benfy under SBP. System currently shows No Benfy under SBP, no action needed related to SBP. Sent member a benfy form to update his benfy for AOP [Arrears of Pay]." d. DFAS, Retired and Annuitant Pay, London, KY, letter, dated 20 June 2014, that notified the applicant that her application for SBP was denied. She was also informed that the FSM did not elect to participate in the SBP or Retired Serviceman's Family Protection Plan. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan (RSFPP) and established the SBP. The SBP provides that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that state courts could treat military retired pay as community property in divorce cases if they so choose. It established procedures by which a former spouse could receive all or a portion of that court settlement as a direct payment from the service finance center. The USFSPA contains strict jurisdictional requirements. The State court must have personal jurisdiction over the FSM by virtue of the FSM's residence in the state (other than pursuant to military orders), domicile in the State, or consent. 3. 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: a. if the service member voluntarily elects to provide a former spouse annuity; b. the election is made in order to comply with a court order; or c. 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. 4. 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. 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 decree of divorce. a. 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, if the service person fails or refuses to make such an election. b. 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 of filing involved. DISCUSSION: 1. The applicant contends that the records of the FSM should be corrected to show she is entitled to receive an SBP annuity because she is entitled to the benefit based on a court-order that amended their Decree of Divorce. 2. The FSM and applicant (Leila M.) married on 4 March 1962. a. Records show the FSM elected SBP with spouse and child coverage based on a reduced amount ($400.00). The FSM's spouse was not available to sign the FSM's SBP election. Accordingly, the Retirement Services Office sent her a letter informing her of the FSM's SBP election. b. The FSM was placed on the retired list effective 1 August 1980. 3. The evidence of record shows the FSM and applicant divorced on 18 April 1984. On 13 June 1984, a Nunc Pro Tunc Order Correcting Clerical Error amended the Decree of Divorce issued on 18 April 1984. a. The applicant was granted a 50% portion of the FSM's retired pay. b. The evidence of record shows DFAS honored the court-ordered (50%) payment of the FSM's retired pay to the applicant. c. The documentation (that was provided by the applicant) fails to show she was granted an interest in the FSM's SBP as a former spouse. d. There is no evidence of record that shows the FSM voluntarily elected to provide a former spouse annuity or that the applicant made such a request to comply with a voluntary written agreement related to a divorce action. 4. The evidence of record shows the FSM married Audrey L. on 17 December 2000. The FSM failed to notify DFAS of the marriage within the one year period of the first anniversary of the marriage. Accordingly, this spouse was not added to his SBP. They divorced on 19 December 2003. 5. The FSM died on 19 March 2013. 6. On 20 June 2014, DFAS considered the applicant's request and notified her that her application for former spouse SBP was denied. 7. The evidence does not show a basis upon which the applicant would be eligible to receive an SBP annuity as the FSM's former spouse. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003687 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003687 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2