BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005223 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: 9 January 2018 DOCKET NUMBER: AR20160005223 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: a. amending the former service member's DD Form 2656, dated 23 May 2013, to show he made a timely election to provide an SBP annuity to his former spouse, in lieu of an election not to participate in SBP and b. paying the applicant her former spouse's SBP annuity retroactive to the day after his death, in accordance with statutory requirements. ___________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: 9 January 2018 DOCKET NUMBER: AR20160005223 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 her deceased former spouse's DD Form 2656 (Data for Payment of Retired Personnel) to show the FSM made a timely Survivor Benefit Plan (SBP) election to provide former spouse coverage, and that the request was submitted and approved in a timely manner. 2. The applicant states, in effect, that: * she and the FSM were married on 21 April 1984 and had two children; they were later divorced on 28 March 2000 * the FSM retired from the Army in 2013; unfortunately, he passed away on 29 December 2015, having never remarried * per the provided court order, dated March 2000, the FSM was ordered upon his military retirement to select full coverage, former spouse for SBP * the FSM was aware of this requirement and assured her it would be in place * she contacted the Defense Finance and Accounting Service (DFAS) to inquire on the status; however, no premiums were withheld for SBP 3. The applicant provides a self-authored statement, dated 26 February 2016, and: * State of Hawaii Certificate of Marriage and Marriage Registration Card * FSM's State of Hawaii Certificate of Death * Superior Court of the State of Alaska Decree of Divorce, dated 28 March 2000 * Superior Court of the State of Alaska document entitled "Non-Opposition to Motion to Enter Order Clarifying Order of the Division of the Marital Interest in Military Retired Pay and Benefits" dated 4 and 19 July 2000 * Documents entitled "Request for Deemed Election under Title 10 USC, section 1450" from the applicant to DFAS dated 31 July 2000 * DD Form 2656, dated 23 May 2013 * Notarized document entitled "Notarized Statement of the Parties Clarifying The Court Order Dividing Military Retired Pay," dated 28 October 2013 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 was born on 3 December 1958. 3. The FSM was appointed as a Reserve commissioned officer of the Army on 4 June 1983. 4. The applicant, J.K.H., and the FSM were married on 21 April 1984. 5. The FSM was reappointed as a commissioned officer in the Regular Army and entered active duty on 13 July 1984. He was separated on 1 June 1995. 6. The FSM was appointed in the Alaska Army National Guard (AKARNG) on 27 July 1995. 7. The FSM was ordered to active duty in an Active Guard Reserve (AGR) status effective 15 March 2000. 8. The applicant and the FSM were granted a divorce on 28 March 2000. The Decree of Divorce shows the judge ordered the FSM to designate his former spouse as his SBP beneficiary and to not alter or withdraw that designation in his lifetime or without leave of the court. 9. The applicant provides a notarized court document entitled "Non-Opposition to Motion to Enter Order Clarifying Order of the Division of the Marital Interest in Military Retired Pay and Benefits" that was signed by the FSM on 19 July 2000, which shows he acknowledged and voluntarily agreed that the applicant would remain his SBP beneficiary as his "former spouse." 10. The applicant provides a document entitled "Request for Deemed Election under Title 10, USC, section 1450," and a letter addressed to the Office of Personnel Management (OPM), both dated 31 July 2000. These documents indicate she enclosed copies of the decree of dissolution and military retirement benefits order to both DFAS and OPM. The documents also show she requested an election be made to name her as former spouse beneficiary under the SBP as the FSM was required to do. 11. The applicant provides a letter from a law firm, dated 26 July 2000, which shows she was sent a copy of the "Order Clarifying Order for the Division on the Marital Interest in Military Retired Pay and Benefits" so she could forward it to the appropriate military agency to get it approved. 12. The AKARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 with 20 Years of Service (Twenty Year Letter) on 9 August 2004. There is no documentary evidence that he took action to enroll in the Reserve Components Survivor Benefit Pan (RCSBP) by completing a DD Form 1883 (SBP Election Certificate) within 90 days of receiving his Twenty Year Letter. 13. The FSM completed a DD Form 2656 on 23 May 2013 that shows: * he designated "David" (his son) as his beneficiary for unpaid retried pay * he indicated he was single and he had no dependent children * he elected not to participate in SBP 14. The FSM was honorably retired on 30 June 2013 and was transferred to the U.S. Army Reserve Control Group (Retired Reserve). 15. The FSM's NGB Form 22 (Report of Separation and Record of Service) shows he honorably resigned from the AKARNG on 30 June 2013, after completing 28 years of total service for retired pay. 16. The FSM's NGB Form 23B (ARNG Retirement Points History Statement) confirms he served in an AGR status until on or about 30 June 2013. 17. The applicant provides: a. A notarized document entitled "Notarized Statement of the Parties Clarifying the Court Order Dividing Military Retired Pay" with the applicant's signature date of 24 October 2013 and the FSM's signature date of 28 October 2013. This document shows the two parties agreed to divide the FSM's military retired pay as stipulated in their Superior Court of Alaska agreement; the applicant was entitled to receive 23 percent (%) of the FSM's disposable military retired pay. b. A State of Hawaii Certificate of Death that shows the FSM's date of death as 29 December 2015 at the age of 57. The death certificate indicates he was divorced at the time of death. Additionally, there is no indication in his records that he remarried subsequent to his divorce from the applicant. 18. According to DFAS records, the only document they confirm having received is the DD Form 2656, dated 23 May 2013, in which the FSM elected not to participate in the SBP. They have no deemed election from the applicant or her attorney. Additionally, no SBP premiums were ever deducted. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents. Elections are made by category, not by name. 2. Public Law 95-397, the RCSBP, 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 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. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 4. 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. 5. 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. 6. 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 requests correction of the FSM's DD Form 2656 to show the FSM made a timely election to provide an SBP annuity to his former spouse, and that the request was submitted and approved in a timely manner. 2. The applicant and the FSM were divorced on 28 March 2000. Their divorce decree stipulated the FSM's former spouse would be named as the sole beneficiary of his SBP annuity and he would make a former spouse election upon his retirement. 3. The FSM received his Twenty Year Letter on 9 August 2004, while serving in an AGR status as a member of the AKARNG. There is no documentary evidence that shows he elected RCSBP coverage within 90 days of receiving this letter. 4. The applicant contends a request was sent to DFAS, by certified mail on 31 July 2000, in an effort to deem an election for former spouse under the SBP. Federal law requires that either the member request former spouse SBP coverage within one year of the divorce decree, or the former spouse request a deemed election. However, DFAS records contain no evidence the applicant requested former spouse coverage within one year as required. 5. The FSM ultimately retired from the AGR program with over 24 years of active service. The FSM's DD Form 2656 shows he elected not to participate in the SBP on 23 May 2013, approximately thirty-days prior to his regular retirement on 30 June 2013. DFAS records confirm no SBP premiums were ever deducted from his retired pay. 6. The applicant provides a "Notarized Statement of the Parties Clarifying the Court Order Dividing Military Retired Pay," dated 24 and 28 October 2013, from the applicant and FSM, respectively, which indicate the applicant was entitled to receive 23% of the FSM's disposable military retired pay. This is retired pay while the FSM was still alive. 7. The March 2000 divorce decree required the FSM to make a "former spouse" SBP election with full retired pay as the base amount/level of coverage upon his retirement. It further stated the election shall not be withdrawn, reduced, or revoked without leave of the court. Additionally, it stated the former spouse (applicant) would be solely responsible for the costs associated with the SBP. Per DFAS records, the FSM did not make any SBP payments; therefore, the applicant is advised that all SBP premiums due since the FSM's retirement would need to be paid into the SBP. 8. It was Congress' intent in establishing SBP to provide for those spouses who supported the military member during his or her military career. By divorce decree, there is evidence to show the FSM acknowledged and understood the requirement to provide SBP coverage for the applicant in the event of his death. The evidence shows no barriers in policy or law that would prevent the Board from recommending correction of the FSM's DD Form 2656, dated 23 May 2013, to show he changed his SBP election from "not to participate in SBP" to "former spouse" coverage in accordance with the divorce decree. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005223 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005223 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2