ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160019129 APPLICANT REQUESTS: * correction of her late ex-husband's (a former service member (FSM)) records to show she was reinstated as the former spouse for Survivor Benefit Plan (SBP) former spouse coverage per her divorce from her subsequent husband * approval of a waiver of the Barring Act APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Letter, dated 18 October 2016 * Self-Authored Letter, dated 11 January 2017, with – * letter to the Defense Finance and Accounting Service-Cleveland (DFAS-CL), dated 2 April 2001 * District Court, County of , State of , Decree of Dissolution of Marriage to , dated 22 January 2001 * Certificate of Marriage, State of , County of , between the applicant and , dated 19 November 1994 * FSM's State of Department of Health Certificate of Death, issued 7 January 2002 * Self-Authored Email, dated 3 December 2002, subject: Reinstatement of Former Spouse Benefits * Self-Authored Email to the then-First Lady of the United States, dated 18 August 2016 * Self-Authored Letter to DFAS-CL, dated 5 October 2016 * Self-Authored Email, dated 27 February 2019 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. She requests reconsideration for SBP former spouse entitlements. b. Her former spouse (FSM) gave her wrong information in reference to her entitlements to the SBP. She never received a formal SBP briefing. The FSM told her that she better sign the form or she would be sorry, which she now recognizes as a threat. c. She enclosed a copy of her letter to DFAS-CL with the FSM's death certificate, attempting to appeal back in 2002. She received no assistance at that time. d. As a "20/20" spouse, she now knows she was not taken care of as she should have been. e. Page 6 of her and the FSM's divorce decree states she would receive half of his retired pay. f. She never dreamed the FSM would take his own life. g. She was briefly married and divorced 1 year before the FSM died. h. She requested a waiver of the time limitations imposed by the Barring Act (Title 31, U.S. Code, section 3702) to allow her application for reinstatement of her entitlements to SBP former spouse benefits. 3. The FSM's records contain a DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System Enrollment) showing he and the applicant were married on 1 June 1969. There was no marriage certificate filed the FSM's records. 4. Having prior enlisted service in the U.S. Air Force Reserve and Regular Air Force, the FSM enlisted in the Regular Army on 1 May 1975. He was honorably discharged on 18 October 1976 for the purpose of accepting a Reserve commission. He was appointed as a Reserve commissioned officer on 19 October 1976 with concurrent order to active duty. 5. The FSM's records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 25 February 1991, which shows in: a. Part III (Survivor Benefit Plan Election), item 12 (Check One of the Following to Indicate the Type of Coverage You Desire), the FSM indicated block a (Spouse only); b. Part III, item 13 (If you checked 12a, b, or c, do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay?), the FSM indicated a reduced amount of retired pay; c. Part VI (Certification), the FSM signed the form on 25 February 1991; and d. Part VII (Survivor Benefit Plan Certificates), the applicant signed, indicating she was fully informed, counseled concerning her options available under the SBP for a survivor annuity, and understood/concurred the decision which had been made by the FSM in Part III. The counselor signed the form on 25 February 1991. 6. The FSM retired on 30 April 1991 in the rank/grade of major MAJ/O-4. 7. On 21 October 1992, the FSM and applicant divorced. a. Section VII (Life Insurance) of the divorce decree states: The co-Petitioner agrees to pay the current premium on the life insurance policy now in effect on the Petitioner's life with the co-Petitioner designated as the beneficiary on such policy. It is specifically understood and agreed that within thirty (30) days of the date of this Agreement, the co-Petitioner shall provide to the Petitioner documentation from the insurance company that the policy has been issued and that the co-Petitioner has been named as the beneficiary of that policy under the terms of this paragraph. Each year the Co-Petitioner shall provide to the Petitioner a statement from the insurance company issuing said policy, that the premiums for the current year are paid in full. b. Section X (Military Retirement Benefits) of the divorce decree states: The parties stipulate and agree that one-half of Husband's [FSM's] Military Retirement pay shall be paid directly to Wife [Applicant], pursuant to The Uniformed Services Former Spouses' Act, P.L. 97-252, 10 U.S.C. 1408 [Title 10, U.S. Code, Section 1408], effective February 1, 1983. The Husband [FSM] shall cooperate with Wife [Applicant] in designating the Defense Finance and Accounting service as agent to receive requests for direct payment from Husband/Retiree's U.S. Army pay under Section 1408. 8. The FSM's service records do not contain a documentation changing his SBP election from spouse to former spouse. However, other documents received from DFAS, detailed below, reflect that the FSM elected former spouse SBP coverage with the applicant as the beneficiary following their divorce. 9. On 18 November 1994, the applicant married O C. M . As she was under age 55 on the date of her remarriage, her entitlement to the FSM's SBP was suspended. 10. On 22 January 2001, the applicant and O C. M divorced and the applicant never remarried. She was under age 55 on the date of her divorce from her second husband. In cases where remarriage before age 55 is terminated by divorce, reinstatement of the SBP annuity is effective the first day of the month in which the marriage is terminated. 11. On 2 April and 1 May 2001, the applicant submitted letters to DFAS, enclosing the divorce decree between her and O C. M . 12. On 1 December 2001, the FSM died. His death certificate shows he was divorced and named his son as the informant. 13. The applicant provided an email to DFAS, dated 3 December 2002, subject: Former Spouse Benefits Appeal, wherein she states: * the FSM took his life on 1 December 2001 * she and the FSM were married for almost 25 years * she left the FSM because his inability to quit drinking * once the FSM left the service, he could not find a job or make the transition to civilian life * they attended a mandatory separation briefing on SBP and the FSM told her the SBP annuity would never be enough to matter, it wouldn't be enough to pay her electric bill and that she would only receive $200.00 to $300.00 a month at most * the FSM convinced her that a regular life insurance policy would be better and told her to sign away the SBP * their divorce decree stipulated that he had to make life insurance policy payments and provide her with monthly statements * the FSM failed to make the payments because his drinking obsessed him * she took over the payments and ownership of the life insurance policy that was left * she used a portion of the life insurance to pay for the FSM's funeral * when the FSM died, her portion of his retired pay stopped * their son was disabled and unable to work, he struggles with making ends meet and she constantly assists him financially 14. On 18 August 2016, the applicant sent the then-First Lady of the United States an email, describing the FSM's military service. She stated the FSM took her to the legal office in connection with his retirement and made her sign paperwork pertaining to spousal benefits that she didn't understand at the time. She further stated she appealed to the board to try to recoup her spousal benefits after he died, explaining that she didn't know what she was signing, that he made her sign the documents with a threat. After a lifetime of hardships associated with being in the military, she now faces a lifetime of hardships by not receiving what she really feels she deserves. 15. On 5 October 2016, the applicant sent DFAS a letter wherein she stated: * she tried to request payment of the SBP annuity within the regulatory time frame, but was given wrong contact information * she also wrote a letter to the ABCMR in 2002, requesting assistance but she kept reaching a dead end * her efforts were never acknowledged * she wrote to the then-First Lady of the United States * she recalls going to the legal office with the FSM * the FSM gave her incorrect information and threatened her to sign the paperwork * she requested reinstatement of her former spouse SBP benefits retroactive to 1 December 2001 16. In a letter to DFAS, dated 11 January 2017, the applicant indicated she met with the Fort Carson Judge Advocate General's Office between January and November 2002 to inquire into receipt of the FSM's SBP annuity. She was informed that she was not eligible based on her remarriage. She was advised to appeal the ruling. 17. An email from DFAS, dated 26 February 2019, provided the following documents relating to the FSM's SBP: a. a DFAS-CL Form 7220/497 (Telephone/Personal Inquiry Record), dated 7 May 1995, indicating the FSM called DFAS to say the applicant remarried and instructed DFAS to terminate the SBP; b. a Facsimile Transmittal Header Sheet from the applicant to DFAS Retired Pay, requesting former spouse SBP election of the FSM's SBP; c. a copy of her marriage certificate to O C. M , dated 28 November 2004; and d. an archived document, showing: (1) the FSM's original SBP election for spouse coverage, dated 1 May 1991; (2) the SBP former spouse election, dated 1 August 1993; (3) annuity base amount to the spouse of $386.72; and (4) the handwritten notation: F/S [former spouse] remarried – 11/19/94 (under age 55) stop F/S – eff [effective] – 11/19/94 (suspended status) refund due – 12/1/94-3/31/95 $9.67 x 4 mos [months] $38.68 due 18. As detailed above, despite the absence of the specific form electing former spouse SBP coverage, contemporaneous notations reflect the FSM elected former spouse SBP coverage with the applicant as the beneficiary. If the FSM had not elected former spouse SBP coverage, there would have been no reason for him to notify DFAS to suspend said coverage upon the applicant’s remarriage. Further, the applicant’s remarriage before age 55 suspended her SBP coverage. However, in cases where remarriage before age 55 is terminated by divorce, reinstatement of SBP annuity eligibility is effective the first day of the month in which the marriage is terminated. An email from DFAS, dated 27 February 2019, provided the following additional documents: a. a letter to the applicant, dated 3 January 2017, requesting the divorce decree between the FSM and her; b. a letter from the applicant, dated 11 January 2017, stating the basis of her claim; c. a copy of the divorce decree between the FSM and the applicant; and d. a letter from the applicant, dated 2 April 2001, stating she enclosed the divorce decree, changing her address, and changing her banking account information. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The Board agreed with the legal opinion that the applicant is entitled to a SBP annuity as the FSM’s former spouse. Upon the FSM’s retirement, he elected spouse only reduced SBP coverage. Despite the absence of the specific form electing former spouse SBP coverage, the contemporaneous notations from DFAS reflect the FSM elected former spouse SBP coverage. The applicant’s remarriage before age 55 suspended, but did not terminate the SBP coverage. In cases where remarriage before age 55 is terminated by divorce, reinstatement of SBP annuity eligibility is effective the first day of the month in which the marriage is terminated. The applicant divorced her second husband in January 2001 and notified DFAS. As such, the applicant should have received a SBP annuity as the FSM’s former spouse. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 applicant selected spouse-only coverage of SBP, that it remained in effect and covers his former spouse (except for the period during which she was otherwise married), that the request was received and processed by the appropriate office in a timely manner, and that the former spouse be paid all annuity due her. 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, 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 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. 2. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses 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 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. 3. 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. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment. 4. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the U.S. Government of the need to retain, access, and review old records for the purpose of settling stale claims which are often difficult to prove or disprove. //NOTHING FOLLOWS//