ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  2 October 2019
DOCKET NUMBER: AR20170005323


APPLICANT REQUESTS: correction of the records of her former husband’s 
records, a former service member (FSM) Survivor Benefit Plan (SBP) election to 
show former spouse coverage.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 149 (Application for Correction of Military Record)
*	Former Spouse Statement
*	Letter of Support (2)
*	Divorce Decree
*	Death Certificate
*	DD Form 2656 (Data for Payment of Retired Personnel)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
   *	DA Form 2339 (Application for Voluntary Retirement) 
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 (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 she sent the paperwork in time, however, it was returned 
undeliverable.

3.	The applicant provides the above referenced documents to include:

   a.	A statement which states she was married to the FSM for 16 years during his 
Army career. When they separated, a judge in granted her his SBP 
benefits.  She claims that she was denied her now deceased husband’s SBP 
benefits because she failed to submit a deemed election form.  She contends that 
she was unware that she was required to submit the form. She suffers from mental 
health issues and has been forced to leave her home after the alimony stopped 
when the FSM died.
   


   b.	A letter of support from First Fruit Ministries, a traditional housing 
organization, dated 30 May 2016, which states the applicant is a resident of the 
program for homeless women and children.

   c.	A letter of support from her daughter which she shared with FSM, which was 
notarized on 25 May 2016, which states her mother was married to her father 
throughout his military career. Also, her mother suffers from severe mental health 
conditions and the prescribed medications makes her confused and at times, unable 
to comprehend the situation. She adds that her father handled all military matters 
and her mother has been evicted due to the loss of her father’s retirement pay.

   d.	A divorce decree, dated 2 July 2004, from the state of , which 
states the applicant was lawfully married to the FSM on 15 May 1983 and separated 
in October 1999.  It shows his surviving spouse as X__ X__.

   e.	A death certificate dated 29 Aug 2013, from the state of , which 
certified the FSM died on 24 August 2013.

4.	A review of the FSM’s service record shows:

   a.	He entered active duty on 23 July 1976.

   b.	In conjunction with retirement processing, on 3 March 1998, he signed and 
completed a DD Form 2656, which shows in:

*	block 22 (spouse name): X_X_
*	block 25 (date of marriage): ## May 198#
*	block 28 (beneficiary category):  I elect coverage for spouse only
*	block 29 (level of coverage): I elect basic coverage based on full gross 
pay plus supplemental coverage but checked “none” for the percentage.

5.	According to his DD Form 214, he was honorably retired for sufficient service for 
retirement on 31 May 1998.

6.	The court order, Separation Agreement, signed by the FSM and former spouse, 
X__X__ on 2 April 2002, which outlined “post separation support” is not available 
for the Board to review.

7.	By law, a spouse becomes an eligible spouse beneficiary under SBP upon the 
one year anniversary of marriage and, if so eligible, becomes entitled to the spouse 
annuity upon the death of the retired Soldier.

8.	By law, SBP passes by category not by name. Former spouse coverage under 
SBP may be voluntarily initiated by the Soldier or court-ordered. If court-ordered, 
the former spouse may request a former spouse coverage election be deemed to 
have been made.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief 
was not warranted. The applicant’s contentions were carefully considered. The 
court-order showing the FSM was to name the applicant the former spouse on the 
SBP was not available for the Board to review. The FSM’s death certificate shows 
he was married to a person other than the applicant at his time of death. The Board 
agreed the applicant did not provide evidence showing the widow relinquished 
interest in the SBP, and therefore, deny the requested 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.



X	
CHAIRPERSON
Signed  by: 
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 (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 Record (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.	Title 10, USC, section 1448, establishes the SBP.  It essentially states, in 
pertinent part, that eligible participants include persons entitled to retired pay and 
persons who would be eligible for reserve-component retired pay but for the fact that 
they are under 60 years of age. A standard annuity participant is a person who is 
entitled to retired pay and who is married or has a dependent child when he 
becomes entitled to retired pay, unless he elects (with his spouse’s concurrence) not 
to participate in the Plan before the first day for which he is eligible for that pay. A 
person who is a participant in the Plan and is providing coverage for a spouse or 
spouse and child and who has a former spouse who was not that person’s former 
spouse when that person became eligible to participate in the Plan, may elect to 
provide an annuity to that former spouse. Any such election must be written, signed 
by the person making the election, and received by the Secretary concerned within 
one year after the date of the decree of divorce, dissolution, or annulment. A person 
who elects to provide an annuity to a former spouse shall, at the time of making the 
election, provide the Secretary concerned with a written statement (in a form to be 
prescribed by that Secretary and signed by such person and the former spouse) 
setting forth whether the election is being made pursuant to the requirements of a 
court order or whether the election is being made pursuant to a written agreement 
previously entered into voluntarily by such person as part of, or incident to, a 
proceeding of divorce, dissolution, or annulment, and (if so) whether such voluntary 
written agreement has been incorporated in or ratified or approved by, a court order.

3.	Title 10, USC, section 1450, governs beneficiaries and payment of SBP 
annuities. It essentially states, in pertinent part, that if a Plan participant is required 
pursuant to a court order to provide an annuity to a former spouse and such person 
then fails or refuses to make such an election, such person shall be deemed to have 
made such an election if the Secretary concerned receives a written request, in such 
manner as the Secretary shall prescribe, from the former spouse concerned 
requesting that such an election be deemed to have been made. The request shall 
include either a copy of a court order, regular on its face, which requires such 
election or incorporates, ratifies, or approves the written agreement of such person, 
or a statement from the clerk of the court that such agreement has been filed with 
the court in accordance with applicable State law.  An election may not be deemed 
to have been made in the case of any person unless the Secretary concerned



receives a request from the former spouse of the person within one year of the date 
of the court order or filing involved.

NOTHING FOLLOWS