ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20160016387 APPLICANT REQUESTS: The applicant, the former spouse of the Former Service Member (FSM), requests to be the deemed beneficiary of the FSM’s Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 354-0008, dated 19 December 1996 * DD Form 2656 (Data for Payment of Retired Personnel), dated 12 January 1997 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 October 1997 * Property settlement agreement, dated 22 December 1997 * Divorce decree, dated 10 February 1998 * Death certificate, dated 26 April 2016 * Defense Finance and Accounting Service (DFAS) letter, dated 6 June 2016 * Self-authored letter, dated 6 July 2016 * Applicant’s daughters letter, dated 19 July 2016 * DD Form 2656-7 (Verification for Survivor Annuity), dated 6 February 2017 * Direct deposit form, dated 6 February 2017 * Form W-4P (Withholding Certificate for Pension or Annuity), dated 6 February 2017) FACTS: 1. The applicant states she was never informed by her lawyer or the FSM she had one year to file a claim for the SBP. If she had known she would have submitted the claim. 2. A review of the FSM’s service records show the following on: * 12 October 1977 – enlisted in the Regular Army * 12 January 1997 – the FSM completed DD Form 2656 showing the following in: * section 6 (Dependency Information) Ms. X- X-, they were married on 28 December 1981 * section 7 (SBP Election) the FSM elected spouse only coverage * Ms. X- X and a witness endorsed this form * 31 October 1997 – the FSM was honorably retired from active duty 3. The applicant provides: a. Orders Number 354-0008 showing the FSM was released from active duty and placed on the retired list. b. Property settlement agreement wherein page 7, section 11 it states “the husband agrees to continue the wife’s prior endorsement as his SBP beneficiary.” Additionally, on page 10, section 17 it states the property settlement agreement will be incorporated into the final decree of divorce. c. Divorce decree showing Ms. X- X- and the FSM were granted a divorce on 10 February 1998. It is silent in regards to the SBP identified in the property settlement agreement being incorporated into the final decree of divorce. d. Death certificate showing the FSM died on 18 April 2016 and the informant was Ms. X- X-, the FSM’s current spouse. e. DFAS letter wherein the applicant was informed by a DFAS official, although the FSM elected to cover her under the SBP; however, a spouse loses eligibility as a spouse beneficiary upon divorce. If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within one year from the date of the order granting former spouse coverage for SBP. A divorce decree alone does not constitute a deemed election. Your former spouse did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by you. f. Self-authored letter that states in pertinent part, the applicant was married to the FSM for 16 years. In the divorce decree the FSM agreed she would receive the SBP, but she was never informed by her lawyer she was supposed to file a claim for the FSM’s SBP. When the FSM passed away in April 2016 prior to his passing they talked about the SBP and he stated she should receive it. After the FSM passed she notified the retired pay office at DFAS and she was informed she would not be able to get the SBP. g. Letter authored by the applicant’s daughter that states in pertinent part, she witnessed the FSM tell the applicant that in the time of his death the applicant would receive the SBP. She knows the Army was aware of the divorce because the applicant was receiving alimony payments and child support from the FSM’s retirement. h. DD Form 2656-7 showing the applicant attempted to claim the SBP under former spouse coverage indicating she had not remarried. i. Direct deposit form showing the applicant attempted to start an allotment to a checking account. j. Form W-4P showing withholding for federal taxes. 4. The death certificate reflects the FSM member was married to X- X- at the time of his death. Because the FSM did not elect former spouse coverage and subsequently remarried, the suspended spouse SBP coverage resumed after one year of his marriage to X- X-. There is no indication in the record that the FSM affirmatively chose to decline spouse coverage when he married X- X- or that she, as the surviving spouse, has waived her right to the SBP annuity. Only one category of SBP beneficiary may receive the annuity at any time – it cannot be divided like retirement benefits. As such, granting relief for the applicant has the potential to terminate X-X-’s SBP annuity. 5. See applicable SBP laws below. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. However, although the FSM did agree to continue the applicant as the SBP beneficiary (as the former spouse); the FSM did not make an election for former spouse coverage within one year after the date of the divorce decree per 10 U.S.C. § 1448(b)(3). Nor did the applicant deem an election within one year per 10 U.S.C. § 1450(f)(3). After divorcing the applicant, the FSM married X_X_ and, per the death certificate, they were married at the time of the FSM’s death. Unless a member with spouse coverage who remarries affirmatively chooses not to cover the new spouse within one year following the marriage, the suspended spouse coverage automatically resumes at the first anniversary of the marriage per 10 U.S.C. § 1448(a)(6) and DOD Financial Management Regulation (FMR) 7000.14-R, vol. 7B, section 430601. There is no indication in the record that the FSM affirmatively chose to decline spouse coverage when he married X_X_ or that she, as the surviving spouse, has waived her right to the SBP annuity. Only one category of SBP beneficiary may receive the annuity at any time – it cannot be divided like retirement benefits. As such, correcting the record to afford the applicant an SBP annuity as the former spouse would result in termination of the current spouse’s SBP annuity as the surviving spouse. The applicant likely has a meritorious claim against the FSM’s estate relating to the SBP benefits. However, without anything reflecting the FSM’s declination of spouse coverage when he married X_X_ or a signed and notarized waiver from X_X_ with respect to surviving spouse SBP benefits, this claim is appropriately pursued in the courts and not before the ABCMR. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code (USC), section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouse 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. 2. Title 10, USC, 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. 3. Department of Defense Financial Management Regulation 7000.14-R, vol. 7B, section 430601 states that, unless a member, who originally elected spouse coverage but did not have an eligible beneficiary and remarries, affirmatively chooses not to cover the new spouse within one year following the marriage, the suspended spouse coverage automatically resumes at the first anniversary of the marriage. //NOTHING FOLLOWS//