ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20170001176 APPLICANT REQUESTS: the records of her deceased former husband, a former service member (FSM) be corrected to show he changed his election to former spouse within 1 year of their divorce, and payment of the SBP annuity based on his death. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificate * Marriage Certificate * Divorce Decree * Death Certificate * DD Form 2656-1 (Survivor Benefit Plan (SBP)/Reserve Component (RC) - SBP Request for Deemed Election) FACTS: 1. The applicant states the record was in error due to not knowing the laws at the time of divorce with the military retirement. She was notified by the Defense Finance and Accounting Service (DFAS) that the DD Form 2656-1 (SBP/RCSBP Deemed Election) was needed to be filed within one year of divorce or within 3 years of found error. She was awarded his military retirement at the age of 62 and also he had elected the SBP for her upon his death. The FSM died on 22 August 2016. The process was started after his death due when she tried to get the process started on 9 April 2015, she was told at the time she had to wait until she was 62 to get the process started. 2. Review of the FSM's service records shows: a. The FSM was born in November 1954. He had prior service in the U.S. Navy and in the Army National Guard. b. He and X__, the applicant were married on 18 April 1977. c. The FSM enlisted in the U.S. Army Reserve (USAR) on 2 December 1978. He served through multiple reenlistments. d. On 2 December 1996, the USAR Personnel Center issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). e. On 4 December 1996, he completed a DD Form 1883 (SBP Election Certificate). He indicated he was married to X__ and they had three dependent children (born in 1981, 1984, and 1987 respectively, and none was disabled). He elected "spouse and children" RCSBP coverage under Option C (immediate annuity) based on the full amount. He and his spouse authenticated this form with their signatures. f. The FSM was transferred to the Retired Reserve on 15 February 1997. g. the FSM and applicant were divorced on 16 July 1998. Their divorce decree stipulated that: (1) The parties have an interest in a retirement plan through [FSM's] service in the U.S. Army. [FSM] acquired a total 2426 retirement points as a result of his active-duty and reserve service. [FSM] is now retired and will not acquire any more retirement points. [FSM] acquired 1045 retirement points prior to his marriage to [Applicant] and 1381 points after his marriage to [Applicant]; accordingly, [FSM] has a 43% non-marital interest in the military retirement plan. Each retirement point has a value of .124 as of January 1, 1998; the approximate amount of the military retirement benefit is $300.82 per month. (2) [FSM] elected Option C for his retirement benefit which provides that his survivors will receive an immediate annuity upon his death whether before or after age 60. If [FSM] had not elected option C and he died before age 60 his survivors would not receive any benefit. As a result of the Option C election, the annuity is payable at 55% of the full value which amounts to $165.45 per month. The non-marital portion of the annuity is $71.14 per month and the marital portion is $94.31 per month. (3) Military Retirement Plan. [Applicant] is awarded the entire right, title, interest, and equity, free and clear of any claim on the part of [FSM] in and to the first 24 monthly payments he is eligible to receive from his military pension plan. Thereafter, [Applicant] is awarded the entire right, title, interest and equity, free and clear of any claim on the part of [FSM in [FSM's] military pension plan. The federal government is ordered to pay directly to [Applicant] 100% of each monthly payment that [FSM] would have received pursuant to his retirement plan. [Applicant's] rights under the Soldier's and Sailor's Civil Relief Act of 1940 have been observed. If the plan administrator for the Military Retirement Plan deems the duly entered court order to be an invalid Qualified Domestic Relations Order, the parties shall modify the court order, or a separate Qualified Domestic Relations Order to be drafted by [Applicant's] attorney, done so in a way which will effectuate their intentions and at the same time satisfy the Plan Administrator's requirements. The court has jurisdiction over the parties subject to this agreement. The court shall specifically retain jurisdiction over the parties and the Plan to establish or maintain the Qualified Domestic Relations Order. h. There is no indication the FSM changed his RCSBP election to former spouse within one year of their divorce. Likewise, there is no evidence the applicant deemed the election to her within one year of their divorce. i. On 23 November 2014, the FSM submitted an Application for Retired Pay at Age 60 (DD Form 108). With his application, he submitted a DD Form 2656 (date for Payment of Retired Personnel) and indicated he was married to X__ on 22 July 2006. He elected to decline participation in the SBP. His spouse concurred with his election, signed the election, and had her signatures notarized. j. The FSM died on 22 August 2016 at the age of 62. His death certificate show she was married to X__ and she was the informant. 3. By law (Title 10, U.S. Code) SBP elections are made by category, not by name. a. The SBP, as defined in Sections 1447-1455, was enacted on 21 September 1972, to provide retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries. Public Law 98-94, dated 24 September 1983, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage within one year of divorce. Public Law 98-525, enacted on 19 October 1984, further amended the SBP by giving the former spouse of a retiree the option to request that a former spouse election be deemed to have been made by-the retiree. b. 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. c. 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, there are two requirements for a deemed election to be valid. First, the divorce decree must specifically indicate the former spouse is entitled to coverage under the SBP; and second, the request for a deemed former spouse election must be received within one year of the divorce. d. SBP elections are made by category, not by name. Once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. In the event of his death, any existing SBP benefits would have had to be paid to the beneficiary in effect at the time of death – his spouse (widow), not his former spouse, if they have been married for at least 1 year. The FSM remarried and declined SBP coverage. The death certificate shows the applicant was not the spouse at the time of death. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. The FSM remarried after the divorce from the applicant. He and his new spouse properly declined the SBP, and their election was received and processed in a timely manner by the appropriate DFAS office. There is no evidence showing the FSM wanted to provide former spouse coverage after remarrying, nor evidence the new spouse waived her would be (if elected) entitlement to SBP to the applicant. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. 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. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: * elect to decline enrollment and choose at age 60 whether to start SBP participation * elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday * elect that a beneficiary receive an annuity immediately upon their death if before age 60 At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. This law also decreed that State courts could treat military retired pay as community property in divorce cases if they so choose. 3. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and Reservists. 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) AR20170001176 5 1