ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160019326 APPLICANT REQUESTS: correction of her late husband's (a deceased former service member (FSM)) records to show he changed his Survivor Benefit Plan (SBP) election from not electing to participate in SBP to former spouse coverage per their divorce decree. 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 21 September 2016, with 16 attachments * Self-authored Statement, undated, titled "A Brief Synopsis of Our Military Life, Character of Major (MAJ) P____ T. O____" * Attachment 1 – State of , Department of Health, Certificate of Death, dated 2 October 2015 * Attachment 2 – State of , Bureau of Vital Statistics, Certification of Marriage, dated 6 April 2016 * Attachment 3 – State of , Circuit Court for the County of , Judgement of Divorce, dated 5 September 1997 * Attachment 4 – State of , Circuit Court for the County of , Qualified Domestic Relation Order (QUADRO), U.S. Military Pension, dated 28 October 1997 * Attachment 5 – State of n, Circuit Court for the County of d, Notice of Entry of Order, dated 22 September 1997 * Attachment 6 – State of Michigan, Circuit Court for the County of Oakland, Defendant's Objections to QUADRO, dated 25 September 1997 * Attachment 7 – State of , Circuit Court for the County of , Proof of Service, dated 22 September 1997 * Attachment 8 – Letter, T____ L____, Attorney for Plaintiff (L____ E. O____),dated 30 October 1997, with attachment * Attachment 9 – A Statement of Account, dated 1 October 1997 through 12 January 1998 * Attachment 10 – Letter, Defense Finance and Accounting Service (DFAS), Cleveland, OH, dated 15 December 1997 * Attachment 11 – DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 2000 * Attachment 12 – Certificate of Retirement, dated 1 November 2000 * Attachment 13 – American Board of Emergency Medicine, dated 26 December 2002 through 31 December 2012 * Attachment 14 – State of , Circuit Court for the County of , Plaintiff's Arbitration Statement, dated 23 June 1997 * Attachment 15 – Letter, DFAS, Cleveland, OH, dated 6 March 2001 * Attachment 16 – FSM's Leave and Earnings Statement, dated 1-31 July 1997 * Letter, DFAS, Indianapolis, IN, dated 30 September 2016, with enclosed account statement * DD Form 2656-1 (Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage), undated FACTS: 1. The applicant states: a. DFAS and/or the FSM did not comply with the certified court order granting the former spouse SBP benefits. b. Both she and the FSM agreed and signed the certified court order, dated 23 October 1997, that showed she should be named on the SBP elections as the former spouse to receive benefits upon the FSM's death. c. DFAS acknowledged receipt of the official copy of the divorce decree and QUADRO on 30 October 1997 and 6 January 1998. In addition, a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) was completed and sent to DFAS by her attorney. d. She was married to the FSM for 23 years and 19 of the 23 years were as his military wife. e. They were divorced in 1998, when she, the FSM, his attorney, and her attorney, signed the final and official divorce decree, which included a QUADRO for military retirement where the SBP was agreed upon for the FSM to elect his former spouse (applicant) to receive the SBP in the event of his death. f. Her attorney immediately sent a copy of all the finalized documents to DFAS on 5 September 1997, where they acknowledged receipt and sent him a checklist of documents needed to finalize the court order. g. On 22 August 1998, DFAS mailed a letter to the applicant at her home address in Michigan, stating "They had received the divorce decree and application for member, P____ T. O____, as a division of property under the Uniformed Services Former Spouse Protection Act (USFSPA), and that all requirements under the Act and Regulations had been met." She received the letter on or about 1 September 1998. h. The FSM retired 1 November 2000 after serving his country for 21 years. His DD Form 214 showed he was not available to sign the form. His retirement transition should have included a briefing in financial matters. If he attended that briefing, he should have provided his divorce decree that court-ordered him to elect former spouse SBP coverage. i. The FSM passed away 1 October 2015. After she was notified of the FSM's death, she contacted DFAS to find out why her monthly retirement income stopped. She was referred to several agencies and eventually she was told to write to the Army Review Boards Agency for assistance. j. She is willing to travel to appear before the board and would like the board to review all documents enclosed. k. She specifically requests that the board read her self-authored statement, "A Brief Synopsis of Our Military Life, Character of MAJ P____ T. O____," undated, wherein she states: * the FSM joined the military in 1988 with a college degree, in hopes of pursuing a career as a physician, but he was denied by the Army * the FSM attended basic training and shortly after graduating, he attended physician assistant school through the military and was commissioned as a chief warrant officer two * they were assigned to Bamberg, Germany, for their first assignment and the FSM applied for and was accepted to medical school in Miami, FL * the Army would not release the FSM from his military duty to attend medical school * she worked as a secretary for a battalion commander and faxed a letter to the Pentagon, which was received by General (GEN) M____ who had the FSM released from duty and sent to the medical school in Florida * she was left to clear the installation for their family while the FSM departed to attend medical school * the FSM was sent to Fort Hood, TX, after completing his medical school and attended his residency training in emergency room (ER) medicine * the FSM did a short tour in Saudi Arabia during the time they were stationed at Fort Hood, while she worked three jobs to support their family * the FSM continued to drink * after their divorce, the FSM never contributed to their children financially and/or contacted them for Christmas or birthdays * the children were emotionally and financially neglected by their father and this affected them throughout their lives * she took the children to her hometown in Michigan when the FSM was assigned to Fort Leavenworth, KS * while the FSM was stationed at Fort Leavenworth, he was cited for many DUI's, banned from driving on post, and eventually had to walk to work * while the FSM was stationed in Honolulu, HI, the children, who were young at the time, went to visit him, and he took them to several bars with his girlfriend who he met while stationed at Fort Leavenworth * the FSM would not assist financially for college for the children * her son was 18 years old when he was involved in a roll-over automobile accident, was ejected from the vehicle; taken by helicopter to the trauma room, and remained in a coma for 2 weeks with five broken bones * the FSM never came to see his son * when the FSM's daughter turned 18 years old, he called his friend from court in Michigan and asked to stop his child support and insurance * while the FSM was assigned to Tripler Army Hospital, HI,working in the ER, he was accused of stealing drugs from the ER and was possibly going to be kicked out of the Army * the Army allowed the FSM to remain in service until retirement; however, he was banned from working as a physician in the ER and ended up teaching advanced cardiac life support training classes * in 2013, the FSM was admitted to the hospital in Honolulu where he almost died because of being severely intoxicated and ingesting multiple drugs * the doctor on duty told her the FSM had a history of hepatitis C (but it could not be determined if it was due to needle drug abuse) and he also had severe liver damage from excess alcohol abuse * she and their children spent a month by his side while he was in the hospital * when the FSM passed away, her daughter gave her the FSM's military paperwork that showed he had requested a Retiree Account Statement from DFAS on 18 April 2009 that showed he was having a $100.00 allotment/bond coming out of his paycheck which she was not aware of * in December 2015, the applicant obtained a copy of the FSM's SBP election that showed he elected not to participate in the SBP and he did not provide the divorce decree documents that showed he had a court order for SBP election * she still owes thousands of dollars in student loans because the FSM would not assist when she went to college * she believes this document shows how the FSM tried to conceal his obligation to the court order that he signed and the failure of DFAS to add the documents they received from her attorney l. She was a devoted military wife who was there for the FSM from the very beginning of his career to the end. She delayed her career to ensure the FSM was able to complete his. m. The FSM, while working as the emergency room physician, was making over $200,000.00 a year, plus receiving two military bonuses a year, while she was raising two children and trying to pursue her college degree. n. They were working toward a joint retirement and now she has none. At this point in her life, she does not have many choices. She is so devastated because she may lose her home. 2. The applicant and the FSM married on 10 August 1974. 3. Section III (Service Data) of the FSM's Officer Record Brief shows enlisted in the U.S. Army Reserve on 5 August 1980. He was appointed as a Reserve commissioned officer effective 10 August 1984. 4. The applicant provided the Plaintiff's (Applicant's) Arbitration Statement, dated 23 June 1997, which states: a. The applicant's cost of maintaining the joint marital home has increased. b. The applicant's profession will cost her more in child care expenses. c. Current payments from the defendant (FSM) are insufficient to maintain house, utilities, taxes, insurance, etc. d. The applicant delayed her career as a physician in order to help establish her husband and now requires reasonable reimbursement for student loans. e. The applicant wants her share of the $13,000.00 located in their joint account where the FSM withdrew the total amount and kept it for himself. f. The FSM refused and/or neglected to tell the applicant about his true income so as to deny her substantial funds, which caused her financial difficulty. g. The applicant wants the defendant to pay her attorney fees. h. The applicant wants an equitable and fair divorce by receiving reasonable spousal support, medical insurance for the children, half of the FSM's yearly bonuses, and half the pension and stocks or the value therefor prior to the FSM's dissipation of marital assets. 5. The Judgement of Divorce filed on 5 September 1997 and signed by both the applicant and FSM states under the Annuity, Pension, and Retirement Benefit Settlement Provision that the applicant shall be awarded 50 percent of the FSM's military pension through 20 years of service and post-retirement survivors benefits as well as any early retirement subsidy and cost of living increase on her portion of the plan only. This provision assumes the FSM will continue his military service until he has obtained at least 20 years of service. 6. The applicant provided a Notice of Entry of Order filed against the FSM on 22 September 1997. 7. The applicant provided a Proof of Service, dated 22 September 1997, showing the following documents were served through First Class U.S. Mail to the FSM's attorney: * Notice of Entry of Order * QUADRO – U.S. Military Pension * Proof of Service 8. The applicant provided the Defendant's (FSM's) Objections to QUADRO, dated 25 September 1997, stating the QUADRO did not accurately reflect the agreement of the parties and/or the terms of the Judgement of Divorce. 9. The applicant provided the QUADRO – U.S. Military Pension, dated 28 October 1997, signed by both the applicant and FSM, stating the U.S. Military Pension shall pay in accordance with the following to the Alternate Payee (Applicant) shown a portion of the retirement benefits payable to the applicant as: a. The amount payable to the applicant shall equal 50 percent of the life income of the military pension through 20 years of service. b. The applicant shall be treated as a surviving spouse, for the applicant's share only, under the plan and, accordingly, in the event of death of the participant (FSM) either before or after commencement of retirement benefits, payment shall be made to the applicant as provided in the plan for surviving spouse as the same relates to the applicant's share only. c. In the event of death of the applicant before the FSM and either before or after commencement of retirement benefits, payment shall be made to the FSM as provided in the plan unless the applicant elects a "single life annuity" payment. d. The plan shall pay benefits to the applicant in any form permitted by the plan as selected by the applicant, provided that the selected form does not adversely affect the selection by the FSM. 10. The applicant provided Statement of Account documents, dated 1 October 1997, 1 December 1997, and 12 January 1998, showing her attorney prepared, reviewed, and mailed the Judgement of Divorce and QUADRO paperwork to DFAS. 11. On 30 October 1997, the applicant's attorney sent a letter to DFAS, with the following enclosed documents to handle accordingly: * QUADRO – U.S. Military Pension * Judgement of Divorce 12. The applicant provided a copy of the FSM's military leave and earnings statement for the period 1-31 July 1997, showing the FSM was earning over $15,000.00 a month in continuation pay. 13. A letter from DFAS to the applicant's attorney, dated 15 December 1997, stated the applicant's claim for the FSM's retired pay and/or alimony/child support under the USFSPA could not be honored without a certified copy of the final court order of divorce, separation, or annulment. DFAS provided a DD Form 2293 and a list of items needed for processing. 14. On 6 January 1998, the applicant's attorney sent the required documents to DFAS as shown on the Statement of Account, dated 12 January 1998. 15. On 1 August 2000, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) that shows in: * item 14 (Marital Status) – Single * item 25 (Dependent Children) – two dependent children * item 26g (Beneficiary Category(ies)) – he elected not to participate in SBP * item 30 (SBP Spouse Concurrence) – no entries 16. The FSM retired in the rank of MAJ effective 1 November 2000. His DD Form 214 shows he completed 22 years, 2 months, and 26 days of total active service. 17. The applicant provided a letter from DFAS, dated 6 March 2001, confirming she had been awarded 50 percent of the FSM's retired pay. 18. The applicant provided a copy of the FSM's Emergency Medicine Board Certification for the period 26 December 2002 through 31 December 2012. 19. The DD Form 2656-10 (SBP/Reserve Component (RC) SBP Request for Deemed Election) completed and signed by the applicant on 21 July 2014 shows the applicant marked "Yes" in items 11, 12, and 13, indicating the election was made pursuant to a court order and voluntary agreement incident to a proceeding of divorce. 20. The FSM died on 1 October 2015. 21. The applicant provided a letter from DFAS, dated 30 September 2016, informing her that she was overpaid as the former spouse from 2 to 31 October 2015 following the FSM's death on 1 October 2015. 22. The applicant provided a copy of a DD Form 2656-1 showing how she believes the FSM should have completed the form. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The judgment of divorce and qualified domestic relation order (QUADRO) both contain language mandating the applicant be treated as the surviving spouse in the event of the FSM’s death with respect to his military pension. While not expressly stating “survivor benefit plan,” this language can be reasonably construed as mandating former spouse SBP coverage. These documents were provided to DFAS in 1997, within one year of divorce. Upon retirement in August 2000, the FSM declined SBP coverage, contrary to the court decrees. The former spouse did not attempt to deem an election until the FSM’s death (presumably because she was unaware of the FSM’s actions that were contrary to the divorce degree and QUADRO). While the applicant did not deem an election within one year of the FSM’s retirement, she did submit the divorce decree and QUADRO to DFAS within one year of the divorce. It is an injustice to prevent the applicant from receiving former spouse SBP benefits on the basis that the FSM failed to honor the legal commitments the FSM entered into with his former spouse. Relief will ensure that the FSM complied with the terms of the divorce decree and QUADRO in this case by ensuring that his former spouse can receive the SBP annuity. 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 that the evidence presented was 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 he properly initiated his DD Form 2656 Survivor Benefit Plan (SBP) for his former spouse on 1 August 2000 and it remains unchanged in accordance with the court-approved agreements – the 5 September 1997 Judgment of Divorce and 23 October 1997 Qualified Domestic Relation Order. 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 1448(b)(2) to (5), 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. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019326 10 1