ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20160015994 APPLICANT REQUESTS: * in effect, reconsideration of the Board's decision to correct the record of her deceased spouse, a former service member (FSM) to show an election for former spouse Survivor Benefit Plan (SBP) coverage * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letters to and from Defense Finance and Accounting Service (DFAS) * letter from a legal assistance attorney * Army Board for Correction of Military Records (ABCMR) Docket Number AR20130002952 * Order of Precedence for Payment of Deceased Retirees’ arrears of pay (AOP) * information on AOP * letter from FSM regarding SBP * Retiree Account Statement * Marriage License of FSM and widow from the State of Colorado * Verification for Survivor Annuity * FSM’s Certificate of Death from the State of Colorado * Defense Enrollment Eligibility Reporting System (DEERS) information * portion of FSM's divorce decree from ex-wife * handwritten child support worksheet for 2010 * bank statement * child support order to ex-wife * FSM's son's graduation announcement * FSM's son's college acceptance letter * SBP child coverage termination date * SBP guide * DD Form 2788 (Child Annuitant's School Certification) * update of SBP dated January 2016 * AE Form 360 (Report of Child Born Abroad of American Parent(s)) from FSM's first wife * DD Form 2558 (Authorization to Start, Stop, or Change an Allotment for Active Duty or Retired Personnel) for first wife * apartment lease of FSM and his widow * letter from bank regarding apartment of FSM and his widow * letter from FSM and his widow regarding move from apartment * building inspection form * divorce decree of FSM's widow and her ex-husband * copy of identification cards showing widow's name changes * FSM's identification cards * card congratulating FSM and applicant on their new house * application for electrical services under the FSM and applicant’s name at the same address, 27 October 2010 * ADT contract showing FSM and applicant had same address, 2 December 2010 * TRICARE bill statement showing FSM, applicant, two sons as enrolled members * enrollment change form showing the applicant as the beneficiary * life insurance form of FSM listing the applicant as the beneficiary * medical forms of widow to inform on her disabilities * divorce decree of FSM and first wife 17 December 1979 * letter from first wife to FSM sharing update on their daughter’s high school graduation and if she does not go to college then her support stops * DD Form 214 (Certificate of Release or Discharge from Active Duty) showing FSM was honorably retired on 31 January 1992 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's ex-wife's case by the ABCMR in Docket Number AR20140017623 on 4 August 2015. 2. The applicant states: * she wants a reinvestigation of the bylaws giving DFAS control over revoking/rejecting the new SBP request set in motion by FSM while he was still living * reinvestigation and copy of AOP document assigning beneficiary (dated 25 May 2010) * reinvestigation and removal of the name XXX (former spouse/2nd wife) as requested by FSM while living * reinvestigation and copy supporting receipt of 2011 marriage license by DFAS and their response letter dated 15 November 2011 requesting supporting documents, previous marriage divorce decree/ separation agreement * reinvestigation and a copy of bank statements which support payment of emancipation of over $32,000 paid in disposable pay * the FSM first sent a marriage license and letter to DFAS showing his marriage to the applicant and to have her put on his SBP in July 2011 * the applicant received her dependent ID card from DEERS on 5 July 2011 * received a call and document from DFAS stating the FSM is entitled to reimbursement of premiums for SBP from date of divorce on 19 July 2011 * printed legitimate order of precedence for SBP from date of divorce 21 February 2012 * received document from DFAS stating FSM has one year to add new spouse to SBP on 9 April 2012 * received document from DFAS beneficiary designated for arrears despite the applicant being the next of kin legally * DFAS failed to follow protocol and court procedures * AOP was paid to an ineligible party * after the FSM died, his mail was diverted by the postal service * medals were stolen along with a computer and military documents from the applicant's home * she also had to undergo back surgery under total disability * the FSM's adult son was an ineligible recipient of the SBP * applicant and FSM were together for over 3 1/2 years as husband and wife * she would like a reinvestigation of SBP premium payments being stopped before FSM's death * reinvestigation of premium payment reimbursements promised by DFAS in July 2011 to FSM within a 6 month period; DFAS never delivered * reinvestigation of the divorce decree and ex-wife regarding upon graduation of dependent child or leaving school, support stops * reinvestigation into TRICARE taking unauthorized funds from the applicant's account to pay for XXXX's family * reinvestigation in TRICARE benefits being denied to the applicant due to incorrect information * DFAS disregarding guidelines to stop family medical plan upon death * the FSM diligently contacted DFAS repeatedly submitting the marriage license and divorce decree * the FSM's signature was forged by his ex-wife * the applicant's mail had been diverted from last known address to another address * AOP was sent to ineligible adult deemed eligible by DFAS with new provisions * DFAS website shows revision of AOP order of precedence * FSM made same request to add his new spouse as his only dependent * the recorder clerk advised the FSM and applicant to legitimately file an affidavit for common law marriage immediately following the divorce in 2010 with ground for a hearing to get married * DFAS requested a marriage license to make spousal changes of new marriage * DFAS misled and misinformed the FSM regarding his premium reimbursement * the FSM's child had to be left on SBP to keep it from being suspended * the FSM applied to DEERS for his identification card renewal and a card for his spouse * FSM also applied to TRICARE * the FSM was the sole provider to his dependent spouse who is now a widow who is totally disabled * the FSM has 1 year upon remarriage to add new wife to SBP * he had until 10 June 2012 to make the change * the FSM sent a letter to DFAS on 16 December 2011 which was within the year guideline * the premiums never stopped * the FSM's bank statements show he paid over $32,000 to his ex-wife * his youngest child graduated and turned 18 in May 2011 * in June, his child stopped pursuing school and went to work * DFAS shows a total disregard for their own protocol allowing for 150 day break from school * DFAS allowed his child to return to school in January 2012 * the FSM submitted the marriage license a second time along with a letter requesting his ex-wife be removed from his SBP and designating his current spouse as the beneficiary on 16 December 2011 within the year allowed to make the changes * the SBP change for the FSM's current spouse was never rejected or disputed while the FSM was alive, but it was rejected and revoked upon his death * premium payments were never stopped or changed until after his death * he was married to his first wife for 7 years, 5 months, and 18 days and they had one child together * he was married to his second wife/former spouse XXX for 10 years, 10 months, and 6 days and had two sons with his second wife * the FSM's records were not accurately updated through documentation, letters, and verbal contact * the applicant continues to receive incorrect, misleading, and deceiving information with regard to what the FSM wanted * the FSM has been a victim of manipulation for years, but he hated to complain about it * false information has been relayed and the applicant feels there is dishonesty within the system * she feels a great injustice was done in honoring her husband and the twenty plus years he served our country * the continued error in judgement has caused delays, inconvenience, and major hardships * she has reviewed the bylaws and found them to be broken * there has been a failure to follow the court's procedural due process and military's protocol * she feel the changes made to the AOP and SBP procedures were done after the FSM had sent in the correspondence and they should be honored 3. Prior to the FSM's retirement from service, he made his SBP election on a DA Form 4240. His election indicated he was married with two dependent children. He chose to elect a survivor annuity based on the full amount of his retired pay for spouse and dependent children. He also chose his spouse as the beneficiary for AOP. The form was completed on 29 October 1991. 4. The FSM and his ex-wife were divorced on 6 April 2010. Within the divorce decree, the FSM had to pay a portion of his retired pay, child support, and had to continue pay into the SBP. The FSM sent a note to DFAS on 19 July 2011 requesting his SBP election be changed to children only. 5. The FSM was married to the applicant on 26 May 2011. Public Law 99-145 permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse. Changes must be made prior to the first anniversary of remarriage. 6. The applicant provides a handwritten letter to DFAS by the FSM dated 16 December 2011 requesting the deletion of his ex-wife from his SBP and the addition of the applicant to his SBP. The FSM passed away on 6 February 2012. 7. The FSM's ex-wife applied to the ABCMR requesting correction to show she was eligible as the former spouse to be the beneficiary for his SBP annuity. The Board granted her request on 4 August 2015. 8. The applicant applied for SBP from the FSM and received a letter from DFAS denying her request. The letter from DFAS stated the applicant was not a properly recognized SBP beneficiary as a result of the FSM’s untimely death. The Department of Defense Financial Management Regulation Volume 7B, Chapter 44, Section 440204(b) requires that spouses acquired after service member’s met SBP eligibility requirements may “only” be eligible if married to the member for at least one year. 9. The FSM and applicant were married approximately nine (9) months. 10. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. See REFERENCES below for SBP legislation and policies regarding this case. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. The Board agreed that the available evidence was sufficient to fully and fairly consider this case without a personal appearance. 2. The Board noted that the applicant in this case had not been married to the FSM for the 12 months required to become an eligible SBP beneficiary. As such, there is no statutory basis under which she could receive the annuity. The Board agreed that the evidence presented in this case did not provide a basis upon which to change the Board's decision in Docket Number AR20140017623. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law. 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 chose. 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. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 4. 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: (1) if the service member voluntarily elects to provide a former spouse annuity; (2) the election is made in order to comply with a court order; or (3) 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. 5. 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. If that person fails or refuses to make such an election, 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. 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. Further, when no election for former spouse coverage is made within 1 year of the divorce, spouse coverage participation is in a suspended status until the retiree gains another spouse who will become the beneficiary after completing 1 year of marriage unless the retiree desires not to resume spouse coverage, which is an option. 6. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015994 8