ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20170002225 APPLICANT REQUESTS: * correction of her deceased former spouse’s, a former service member (FSM), military records to show he elected former spouse Survivor Benefits Plan (SBP) coverage within 1 year of their divorce * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Property Settlement Agreement * Journal Entry of Divorce * FSM’s death certificate * Defense Finance and Accounting Service (DFAS) letter FACTS: 1. The applicant states she and the FSM were divorced in 2000, before his retirement. She was unaware of his noncompliance. She only learned of it after his unexpected death on 31 December 2016. She believes the record is in error because he was ordered by a court of law to enroll her in the SBP as indicted in their divorce decree and property settlement agreement. She never reviewed his retirement paperwork. They were married for 16 years and 11 months. When she requested his retirement documents, he did not respond. In early January 2017, she sent his death certificate to DFAS. She then received a letter wherein DFAS stated her payments would be terminated. She has spoken to DFAS several times and was instructed to file a claim with the Army Board for Correction of Military Records. She has included documents to support this claim. 2. The applicant provides the following: a. Property Settlement Agreement, filed on 17 July 2000, showing the: * FSM and she, X_ , were married on and had two minor children with dates of birth of * FSM should enroll in the SBP before his retirement and shall have the applicant named a former spouse and any eligible children as beneficiaries * FSM and applicant shall each pay equal portion of the premiums assessed in the SBP b. Journey Entry of Divorce showing the FSM and the applicant were divorced on 17 July 2000. c. Death certificate showing the FSM died on The certificate lists his spouse, not the applicant, as the informant. The available evidence is void of their date of marriage. d. Letter, dated 10 January 2017, wherein DFAS advised the applicant they were terminating her payments under the Uniform Services Former Spouses’ Protection Act from the retired/retainer pay of the FSM due to the member’s death. 4. Review of the FSM’s service record shows: a. He was commissioned in the Regular Army on 10 May 1982. b. He and the applicant were married on A Journal Entry of Divorce shows they were divorced on c. On 24 November 2003, he completed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated on the form he was single and elected not to participate in the SBP. d. On 17 July 2000, the FSM and applicant signed a Property Settlement Agreement, that was incorporated into their divorce decree. It shows: * FSM and she, X_ , were married on and had two minor children with dates of birth of * FSM should enroll in the SBP before his retirement and shall have the applicant named a former spouse and any eligible children as beneficiaries * FSM and applicant shall each pay equal portion of the premiums assessed in the SBP e. He was honorably retired on 30 November 2003. f. There is no evidence he elected to participate in the SBP and/or made a former spouse deemed election within 1 year of their divorce. Accordingly, when his marriage to the applicant ended, the spouse portion of his coverage, if elected, would have been suspended. g. The FSM died on 31 December 2016. His death certificate shows the informant is his spouse (now widow) with the first name X___ (someone else other than the applicant). 5. 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 1 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 1 year of the divorce. d. SBP elections are made by category, not by name. Once the applicant and his spouse 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. 6. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Although the Veteran’s divorce decree required him to provide an SBP annuity to his former spouse, the FSM failed to do so and the Veteran re- married. His spouse (now widow) has a vested interest in the SBP annuity (if he had an election and if they had been married for at least 1 year). The FSM’s death certificate show she was married. Board members voted to deny. 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, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses’ Protection Act relating to the Survivor Benefits Plan (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. 3. 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. ABCMR Record of Proceedings (cont) AR20170002225 5 1