ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170000428 APPLICANT REQUESTS: the military records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement from counsel * FSM Death Certificate * Decree of Divorce * Bank statements 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 she was unaware that she had to notify the Defense Finance and Accounting Service (DFAS) within one year of her divorce. Her former husband was sending her a portion of his retired pay prior to his death in 2013. She has enclosed a copy of the divorce document wherein the court ordered him to pay a portion of his retired pay to her. 3. Counsel states that this correspondence serves as a follow-up to that application and requests a decision status. Upon his review of the applicant's divorce records, to include the Separation and Property Settlement Agreement (PSA) and Divorce Court Order incorporating said PSA, he noticed it provides that "Husband shall [give] to the Wife from military retirement benefits the sum of Four Hundred Eighty Two Dollars ($482.00)." However, he also noticed that this military retirement benefit settlement provision does not include the necessary language awarding SBP coverage for the former spouse. Should the Board's review of her application conclude the same, he wants the Board to know that concurrently with this inquiry letter, the applicant is petitioning the Court to amend the Order to include this language. Subsequent to the Amended Order, she will file a written request that the SBP election be deemed made with the Service Secretary (within the 1 year of the date of the court order). 4. Review of the FSM's records shows: a. The FSM enlisted in the Regular Army on 27 April 1973. He served through multiple reenlistments in a variety of assignments. b. He and the applicant (X__) were married on 15 January 1972. c. The FSM applied for retirement on 16 June 1992. Although his SBP election is not available for review, DFAS records show he elected spouse SBP coverage, based on the full amount. d. He retired on 31 May 1993. e. On 27 April 2001, the FSM and applicant were divorced. Their divorce decree required the FSM to pay her a monthly sum of $482.0 per month so long as he shall live but this decree is silent with respect to the SBP. It did not require him to change his election to former spouse. f. The FSM died on 21 December 2013. His death certificate listed his daughter as the informant. g. The applicant provides bank statements reflecting various payments into/deductions from her bank account. 5. By law (Title 10, U.S. Code, section 1448), SBP elections are made by category, not by name. a. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. b. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s counsel contentions were carefully considered. The FSM member and the applicant’s divorce decree did not require the FSM to elect former spouse SBP coverage. The choice to elect former spouse coverage after their divorce was optional for the FSM without a court ordering him to do so, and in accordance with public law, the FSM had one year to make the former spouse election. Based upon the preponderance of evidence, the Board determined there is insufficient evidence to grant 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. Elections are made by category, not by name. 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Additionally, 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. 4. 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. 5. 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) AR20170000428 4 1