ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20170007356 APPLICANT REQUESTS: she be named the beneficiary of her deceased former husband’s Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * three letters from applicant to the Board * a letter from the daughter of applicant and the deceased retiree to the Board * a DA Form 4240 (Data for Payment of Retired Army Personnel) * a divorce decree * a marriage license * a death certificate * Two Retiree Account Statements * a disabled child annuity application FACTS: 1. The applicant states she married her husband prior to him joining the Army and was married to him when he retired. He had her listed as his beneficiary for his pension from day one and he never changed beneficiaries. She was never informed of a divorce, was never served any divorce papers, and is still listed as his beneficiary. Her husband told her that if he passed away she would be left with his pension. Her husband paid for SBP every month up until his death and she should be granted the annuity. If the annuity does not go to her, it should go to their adult daughter, X__, because she has been declared a disabled child due to neurological and mental health issues. All the Defense Finance and Accounting Service (DFAS) keeps telling her is that her husband’s pension account is still being audited. This process has been going on since January 2016 and has been beyond a hardship. 2. The applicant provides: a. A letter from her daughter, X__, who states that her father always told her and her siblings that their mother would receive his military pension when he passed. Her father always paid an SBP premium for her mother and now that she has applied for it DFAS says she is not eligible because she is a former spouse and not a spouse. Her sister, X__ is disabled and has also applied for their father’s SBP. They have been patient, but now they are tired. They get no response from DFAS. She has been appointed to be the administrator of her father’s estate. Her father only married one person and that is applicant. They contacted the Army Review Boards Agency back in December 2016 and sent an appeal of DFAS’s action and have yet to hear back. They have contacted their Congressman and his office states they have no update. No one ever gives them a straight answer. It is sad that a Veteran’s family cannot get help from anyone. Administering her father’s estate has been a daily nightmare due to the issues surrounding her father’s military pension. Her family wants people to do the jobs they are paid to do and stop providing them with “I don’t know answers.” b. A Marriage License showing she and her husband were married in South Carolina, on 20 March 1970. c. A DA Form 4240 (Data for Payment of Retired Army Personnel) showing the applicant’s then husband was scheduled to retire on 1 February 1991. He elected full spouse and children coverage under SBP and indicated that he had at least one child incapable of self-support, because of mental or physical incapacity. The incapacitated child is not specifically identified. He listed three dependent daughters, two of whom were under 16 years old and one, X__, who was over 19 years old. d. A divorce decree from Muscogee County, Georgia, dated 29 September 2003 dissolving the marriage between the applicant and her retiree husband. e. Retiree Account Statements, dated 12 January 2015 and 15 December 2013. These statements show the applicant’s former spouse continued paying SBP spouse and child premiums for nearly a dozen years after he obtained a divorce. The 12 January 2015 statement contains a note that he had paid 287 months toward the required 360 months to reach paid up status. The spouse’s date of birth is that of applicant. f. A Georgia Death Certificate showing applicant’s former husband died on 15 January 2016. The informant was applicant’s daughter, X__. Applicant’s former husband’s marital status is shown as divorced. g. A “Verification for Survivor Annuity”, submitted for applicant’s disabled daughter, X__, dated 18 May 2017. h. A “Physician Certificate for Child Annuitant”, provided by an Advanced Practice Registered Nurse specializing in Psychiatric/Mental Health. The form indicates that applicant’s daughter, X__, has been diagnosed with moderate intellectual disability since birth and schizophrenia since young adulthood. It also notes that applicant has handled her finances and care for the past twenty-six years. 3. A review of the FSM’s service record shows he entered active duty on 31 July 1978 according to his DD Form 214 (Certificate of Release or Discharge from Active Duty) and he was honorably retired for length of service on 1 February 1991. 4. By law, voluntary changes from spouse to former spouse coverage must occur within one year of divorce. Also, only one annuity is payable. In the case of spouse and child or former spouse and child coverage, upon the death of the retiree the annuity is first paid to the spouse/former spouse and then to the child in the event the spouse/former spouse dies or becomes otherwise ineligible. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence in the record showing a divorce between the FSM and the applicant, the applicant’s status changed to “former spouse.” Since the coverage specifically covers “spouse,” the Board concluded that there is insufficient evidence of an error or injustice which would warrant granting an exception to policy 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. Title 10, USC, section 1448, establishes the Survivor Benefit Plan (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. 2. Title 10, USC, section 1450, discusses payment of the SBP annuity. It states, in pertinent part, that effective as of first day after the death of a participant in the Plan, a monthly annuity under section 1451 of this Title shall be paid to the person’s beneficiaries under the Plan as follows: (1) the person’s eligible surviving spouse or eligible former spouse, (2) the surviving dependent children in equal shares, if the eligible surviving spouse or eligible former spouse is dead, dies, or otherwise becomes ineligible, (3) dependent children in the event of an election of child only coverage with spousal concurrence, (4) natural person with an insurable interest. ABCMR Record of Proceedings (cont) AR20170007356 4 1