BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160004885 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 effective date of the applicant's divorce was 20 December 2012 * the effective date for his election of child only coverage, excluding spouse Survivor Benefit Plan (SBP) was his date of retirement * that his (then) spouse concurred with his election * based on the foregoing, he is authorized a pecuniary benefit in an amount, to be determined by the Defense Finance and Accounting Service, as a result of any overpayment of SBP premiums paid for his spouse, as calculated against his military retired pay 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: 30 January 2018 DOCKET NUMBER: AR20160004885 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :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: 30 January 2018 DOCKET NUMBER: AR20160004885 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: * his Survivor Benefit Plan (SBP) election be corrected to show "children only" effective the date of his retirement (31 October 2011) * based on the foregoing correction, reimbursement of any monies he may have overpaid for SBP coverage of his former spouse 2. The applicant states (in his application, as amended): a. Army Retirement Services continues to ignore the fact that his final divorce decree was erroneously relied upon; a memorandum and a supplemental memorandum from the civilian court (that handled his divorce) show the correct divorce date as 20 December 2012. b. He asserts he should have been given the opportunity (at retirement) to choose SBP coverage for only his children, instead of spouse and child; the Fort Hood Human Resources (HR) SBP representative, Fort Hood, TX, acknowledged as much (in a letter dated 10 April 2013). Because the divorce decree showed an erroneous date of 20 December 2013, the U.S. Army Human Resources Command (HRC) advised him the Board had to correct the inaccurate date and reimburse him the additional funds he overpaid. c. He further asks the effective date for his election for child only SBP be set as his date of retirement instead of his divorce date; this is because he was not given the opportunity to make this election at retirement. d. In a letter to the Army Review Boards Agency (ARBA), dated 11 June 2016, the applicant noted ARBA had not acknowledged his request. He alleged the delays he experienced with this and other requests were taking an "excruciating mental toll"; a Department of Veterans Affairs (VA) psychiatric reevaluation (not provided with this application) affirmed his mental state. He further claimed the VA had recognized his divorce date as being in 2012 and submitted an extract of a U.S. Court of Appeals for Veterans Claims decision as evidence. e. In a letter, dated 5 June 2017, and initially addressed to the Department of the Army Office of the Inspector General (DAIG), but readdressed to ARBA by a pen-and-ink correction, the applicant essentially made the following points: * his Fort Hood unit did not allow him to submit a proper SBP election form; this caused his SBP to default to spouse only; a pre-marital agreement and a subsequent divorce order stated his now ex-wife would get "zero SBP benefit" * in about six places, the divorce decree references the date of his divorce as 20 December 2012, but the last line of the decree reflected 20 December 2013 as the divorce date * in a letter, dated 25 September 2015, the Defense Finance and Accounting Service (DFAS) finally granted child only SBP coverage, but his reimbursement just went back to 20 December 2013, pending a clarification of the final decree date; DFAS reimbursed $3,616.40 * after 1 1/2 years of hassle, he got a court to correct/clarify the one-digit error in the year (2012, vice 2013); he asserts DFAS still owes him about $200 per month times 26 months, based on his calculation of the difference in the SBP premium between spouse only and child only * he sent the corrected copy to DFAS; their response on 18 April 2017 essentially duplicated their 25 September 2015 letter * the applicant asserts the Army mishandled his SBP, and ARBA was complicit in whistleblower retaliation; he then details claims he made in previous applications to the Board that are related to the denial of, and failure to pay him for, about 75 days of accrued leave 3. The applicant provides: * Judicial Memorandum, dated 28 December 2012 * original petition for divorce (date unknown) * pre-marriage agreement, dated 2004 * Judicial Memorandum, dated 28 December 2012 * letter, dated 22 March 2013, from 1st Cavalry Division IG, addressed to the applicant * letter, dated 28 March 2013, by the applicant, addressed to HR/Retirement Services, Fort Hood * Supplemental Judicial Memorandum, dated 28 March 2013 * HR, Fort Hood letter, dated 10 April 2013 * Final Divorce Decree (signed 7 May 2013) * DFAS letter, dated 25 September 2015 * DFAS letter, dated 18 April 2017 * DAIG Letter, dated 11 May 2017 * ARBA letter, dated 14 July 2017 * extract from an undated U.S. Court of Appeals for Veterans Claims decision CONSIDERATION OF EVIDENCE: 1. Having had prior active and Reserve service, the applicant entered active duty in the Regular Army on 8 January 2002, in the rank/grade of lieutenant colonel (LTC)/O-5. 2. On 20 December 2004, the applicant and DLS (now his former spouse) executed a pre-marriage agreement; as part of the agreement, DLS agreed to relinquish any future interest she might otherwise acquire in the applicant's pension plans, including any "survivorship" interests (i.e., SBP). The applicant and DLS were married on 21 December 2004. They had a child, LS, who was born on 29 September 2007. 3. On 26 June 2008, he was assigned to the 1st Cavalry Division, Fort Hood. On 5 August 2010, the Commanding General (CG), 1st Cavalry Division, notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, based upon personal misconduct, professional dereliction, conduct unbecoming an officer, and derogatory information. The CG also informed the applicant he was required to show cause for retention. 4. On 10 August 2010, the applicant acknowledged receipt of the notification of elimination memorandum. After consulting with legal counsel, he submitted a request for voluntary retirement in lieu of elimination. In his request, the applicant indicated/acknowledged: * enrollment in the SBP is the only way that he might continue a portion of his retirement pay to his family at his death * he must receive SBP counseling for himself no less than 30 days before retirement * he would be enrolled in full SBP coverage, if he failed to elect otherwise in writing before his retirement * he could not elect less than full spouse SBP without his spouse's written agreement; he required a spousal concurrence for this purpose in conjunction with this application; he realized there were other forms that must be completed during SBP counseling * failure to return the completed spousal concurrence statement to the proper officials prior to his retirement packet being sent to DFAS would result in him being irrevocably and irreversibly enrolled in SBP at full cost, unless an ensuing divorce order decreed otherwise 5. On 21 July 2011, the Deputy Assistant Secretary of the Army (Review Boards) approved his retirement in lieu of elimination, effective 31 October 2011, and directed the applicant's placement on the Retired List in the rank/grade of major (MAJ)/O-4, effective 1 November 2011. 6. On 31 October 2011, he was honorably retired in the rank/grade of LTC/O-5 due to unacceptable conduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 25 years, 1 month, and 2 days of net active creditable service. Item 18 (Remarks) states he was placed on the Retired List in the grade of MAJ. 7. The applicant was in civil confinement when he was retired. 8. A review of the applicant's official military personnel file (OMPF) shows it is void of any documents associated with SBP. 9. The applicant and DLS were divorced on 20 December 2012. Their divorce decree addressed child support, health insurance, custody, and other related issues. It also incorporated the 2004 pre-marriage agreement cited above. 10. He provides the following documents: a. Document, Docket Number (NO.) XXX-XXXXX-2010, titled, "Final Decree of Divorce," indicating the court heard the applicant's divorce case on 20 December 2012. On the final page of the divorce decree, it states, "This divorce judicially PRONOUNCED AND RENDERED in court ... on December 20, 2013..." It was signed by the presiding judge on 7 May 2013. b. Judicial document (Docket NO. XXX-XXXXX-2010) titled, "Memorandum," dated 28 December 2012 and rendered by the applicant's divorce court, confirms the applicant's divorce was granted on 20 December 2012. c. Document, titled, "Docket Sheet for Case NO. XXX-XXXXX-2010" contains an entry showing the applicant's divorce was effective 20 December 2012. d. 1st Cavalry IG Letter, dated 22 March 2013, addressed to the applicant, states, in effect, the IG understood that when the applicant completed his retirement packet, the SBP section was marked out. * in the course of their inquiry, the IG learned the applicant had only completed the worksheets used to assist in the preparation of final documents; he never executed the documents that would indicate his actual SBP elections * the IG also determined the applicant's spouse received SBP coverage at that time because the applicant had not made an election; it is true that, had the applicant made an explicit spouse only election, it would be too late to make any change * because the record showed no valid election, he could still indicate his choices for SBP coverage by completing a notarized DD Form 2656 (SBP Election Form) e. HR, Fort Hood, letter, dated 10 April 2013, addressed to the applicant that essentially states: * a retiring member makes his/her SBP election; if the member is married at the time of retirement, and takes anything less than full SBP coverage for his/her spouse, the spouse's concurrence is required * if the member's spouse does not concur, or if the retiring member fails to make an election before retirement, the member is automatically enrolled in SBP with full coverage for the spouse; if there are eligible children, DFAS adds child coverage later * because the applicant failed to make an election prior to his retirement, DFAS automatically enrolled him in full SBP coverage for his spouse * the HR person advised the applicant he could still make an election by completing a DD Form 2656; (the writer stated, in bold and underlined lettering) if the applicant chose child only, his (now former) spouse would need to be contacted and told of his decision * if his former spouse concurred with a child only SBP election, DFAS would correct his record accordingly, and refund any premiums paid in excess of the child only, spouse excluded rate * if his former spouse did not concur, the automatic spouse SBP enrollment would remain in effect, and the election would change to child only effective the date of his divorce; if child only SBP coverage was approved, the SBP would go to the child's parent or legal guardian * the HR person stated a copy of the divorce decree needed to be sent to DFAS; further, if the divorce decree required spousal SBP coverage, his former spouse would continue to remain an SBP beneficiary f. DFAS letter, dated 25 September 2015, addressed to the applicant, states: * an adjustment was made to the applicant's SBP; spouse and child coverage was amended to child only coverage, effective 20 December 2013 * with that change, the rate for his SBP premium was modified; because this was a retroactive adjustment, he was to receive a credit of $3,616.40 g. DFAS letter, dated 18 April 2017, essentially restates what was written in the 25 September 2015 DFAS letter, with no new information added. REFERENCES: 1. Public Law (PL) 92-425, enacted 21 September 1972, established the SBP. The SBP 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. 2. PL 94-496, effective 1 October 1976, added the following provisions: * spousal SBP costs were suspended if the marriage ended in death or divorce * child only coverage was permitted even if the member was married 3. PL 99-145, effective 1 March 1986, required a spouse's written concurrence when the retiring member elects to provide less than the maximum spouse coverage. In rare instances, concurrence could be waived (e.g. the spouse's whereabouts were unknown or the spouse was mentally or physically challenged). 4. Title 10, U.S. Code, section 1447(11)(A) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22, if still in school. A child who is disabled and incapable of self-support remains eligible if the incapacity occurred before age 18 (or before age 22 if a full time student). DISCUSSION: 1. The applicant retired on 31 October 2011. a. Prior to his retirement, he completed associated worksheets but, apparently due to an administrative error, he was never given the opportunity to make his SBP election. (At the time he was incarcerated.) * by law, when a retiring Soldier is married and does not make an explicit SBP election, his/her spouse is automatically enrolled with full SBP coverage; when the Soldier has children, child coverage is also added by DFAS * because there was no evidence of an election, as required by law, his SBP coverage defaulted to full spouse and child coverage b. The applicant divorced on 20 December 2012, but, due to a clerical error, the divorce date was reflected as 20 December 2013. c. Both the 1st Cavalry IG and the Fort Hood HR office indicated, despite the absence of an election, the applicant could submit a DD Form 2656 to DFAS; he apparently submitted this form to DFAS along with a copy of his divorce decree. d. DFAS changed the applicant's SBP from spouse and child to child only, excluding spouse coverage, but because his divorce decree showed 2013 as the year of his divorce, the effective date of the change was set at 20 December 2013. 2. The applicant appears to submit credible evidence affirming his divorce date was in 2012, not 2013, as reflected in his final divorce decree. a. Given DFAS approved the change to child only SBP coverage to be effective the date of his divorce, the evidence would support amending that effective date at least to the corrected divorce date year in 2012. b. Further, given the contents of the applicant's pre-marriage agreement, the evidence would also support a recommendation to grant full relief with respect to SBP by correcting his records to show, by virtue of the terms of the pre-marriage agreement (subsequently recognized as valid and incorporated into their divorce), his then spouse concurred, in effect, with his election for child only, excluding SBP spouse coverage. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2