ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160016569 APPLICANT REQUESTS: * as the former spouse of a former service member (FSM), she requests the military records of her former husband be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within one year of their divorce * to receive the SBP in accordance with her divorce decree * personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214 * DA Form 4240, Data for Payment of Retired Army Personnel * self-authored letter to Defense Finance and Accounting Services (DFAS) * Divorce Decree * Marriage Certificate * Death Certificate * Report of Legal Separation * Retiree Account statement from DFAS * Pre-Marital Agreement * DFAS-CL Form 5890/2, Designation of Beneficiary Form and letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states on the application and in self-authored letter, in part: * she was married to the FSM from 15 November 1959 to 10 February 1989, during his entire active duty military career * her divorce decree awarded the SBP to her for her now deceased ex-husband * the FSM was to execute documents necessary to provide coverage to his former spouse * she had no way of knowing whether he did execute the necessary documents or not, and it seems though he didn’t, he was under legal obligation per the divorce decree to do so * the FSM could not legally remove her from the SBP per the Property Settlement Agreement (PSA), which he violated in a request on a DFAS-CL Form 5890/2, dated 24 February 2014, in which he added his new wife, Ms. X_ X_ X_ * the FSM provided her with copies of his retiree account statements, showing he still had her covered under the ‘spouse only’ coverage, with her date of birth listed under “Spouse DOB” * when the FSM remarried on 18 May 2002 to the current spouse, now widow, both parties signed a pre-marital agreement that relinquished any claim to SBP * she applied for the benefits upon the FSM’s death * she received a letter that stated her claim had been denied because neither she nor the FSM submitted a request that deemed former spouse election within a year of her divorce * she did not know, now was ever made aware, she had the requirement to deem the election * she should be receiving whatever percentage of his benefits for the years she was the beneficiary, from when it began through 24 February 2014 * she never received any communication of the requirement to deem her election upon her divorce, or at the time that the FSM changed the spouses’ name on the election, and found out when she contacted DFAS * she’d like to know what rights she has as the ex-wife who was married to the FSM for over 29 years, and as the mother of 4 of his children 3. The applicant provides: a. DA Form 4240 (Data for Payment of Retired Army Personnel), signed by the FSM on 29 December 1982, before his retirement date of 28 February 1983. In item numbers 13 and 14, the FSM indicated he was married and had dependent children, and elected in item 15 that he elected ‘spouse and dependent children’ coverage. b. A self-authored letter to the Deputy Director of Operations at DFAS, dated 23 July 2016, in response to the denial of her claim, which was addressed in a letter to an inquiry from her congressman’s office on her behalf. The applicant referred to an excerpt from the letter from DFAS in which they stated that there were no records do not show receipt of an election for former spouse SBP from the FSM. Her response is that she was unaware that she had to contact DFAS within a year from the divorce, and had received copies of his retiree account statements that listed her DOB as the beneficiary through 2 December 2008. This caused her to believe she was still entitled to his SBP. 4. On 28 February 1983, the FSM was honorably released from active duty. His DD Form 214 shows he completed: * 20 years, 9 months, and 8 days net active service * 7 years, 7 months, 1 day of prior inactive service * for a total of 29 years, 1 month, and 6 days of combined years of service 5. The applicant and the FSM were divorced on 10 February 1989. The divorce decree shows that the applicant and the FSM entered into a PSA, and it was ordered that said settlement agreement is “affirmed, ratified and incorporated into this decree and the partied shall comply with same. a. The PSA states the FSM agreed to maintain “wife” (the applicant) as his beneficiary under his SBP. FSM was to execute the necessary documents [to DFAS] to change and provide coverage for a former spouse. b. The PSA further states that the applicant, as the former wife, was to understand that if the FSM remarried and his new spouse were to become qualified under his SBP, that both the former spouse and new spouse could receive coverage at the selection of the husband. c. However, the FSM should not disqualify the former spouse as a beneficiary, per the PSA, although her coverage may become reduced by inclusion of an additional spouse. 6. On 27 December 1996, the applicant remarried. She was 56 years old at the time she remarried. 7. On 18 May 2002, the FSM remarried to Ms. X_. On 17 April, 2002, he and Ms. X_ X_ entered into a Pre-Marital Agreement, which addressed support and maintenance, separate property of both parties, property acquired during marriage, and retirement benefits. The agreement stated each party waived any entitlement to retirement benefits from the other party, and specifically, they waived entitlement to “the prequalified pre-retirement form of SBP,” and that either party agreed to execute all necessary documents in order to carry out said waiver. 8. On 24 February 2014, the FSM submitted a request to DFAS electing his beneficiary by legal order of precedence to his spouse, Ms. X___ X. X___. 9. The FSM passed away on 2 March 2016. 10. AR 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. Title 10, U. S. Code, section 1450(b)(3) 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. A letter from DFAS indicates the FSM failed to make the election for SBP to go to his former spouse. 12. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the dissolution of marriage provided the member agreed to provide coverage. Applicant did not submit a deemed election request within one year of her divorce. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the fact that the FSM never made a change to his SBP election, the Board concluded that making a correction to the record would not be appropriate because doing so would amount to taking away the property of a third party without due process in doing so. For that reason, the Board recommended denying the applicant’s request for relief. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 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. An election, once made, was irrevocable except in certain circumstances 3. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage. 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 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 USFSPA 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 1 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 1 year of the date of the court order or filing involved. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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) AR20160016569 0 5 1