ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 October 2019

	DOCKET NUMBER:  AR20170007949


APPLICANT REQUESTS:  change her deceased former spouse, the former service 
member (FSM) survivor benefit plan (SBP) from no beneficiary to former spouse 
coverage

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	divorce decree addendum
*	divorce decree
*	Commonwealth of medical Examiner’s Certificate
*	Charles Schwab Corporate Services HOK Group, Incorporated 401(k) Profit 
Sharing Plan

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: 

     a.  She is requesting the FSM SBP election be changed from no beneficiary to 
former spouse.  After his retirement, they lived in until their divorce in 2005 after 34 
years of marriage.  The divorce decree stated that the FSM was to maintain the annuity 
under the SBP and that she remain as the beneficiary.  The FSM informed her that he 
submitted the divorce decree to Defense Finance and Accounting Service (DFAS) to 
ensure that she was named as the beneficiary of his SBP.  

     b.  After the death of the FSM, she was informed by DFAS that she was not entitled 
to receive the SBP as the former spouse.  They stated that she was still listed as his 
spouse and updated his records as to her marital status and removed her from the 
coverage and changed the SBP to no beneficiary.  She feels that she should not be 
punished and receive what she is entitled, as granted by the court.  She is requesting 
that her court order be reestablished so she can receive what was ordered by the court.

3.  The applicant provides:

	a.  A copy of her divorce decree, which dissolved the marriage between her and the 
FSM.  On page 22 of the decree it states in effect, that the applicant will no longer have 
an interest in the FSM’s retirement pay as of January 2012.  However, will be named 
the sole beneficiary to the SBP which was in effect at the time of the divorce and the 
cost to maintain her as the beneficiary will be deducted from his military retired pay.

	b.  Commonwealth Medical Examiner’s Certificate, which shows the FSM as 
deceased on 12 June 2016.

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

	a.  The FSM’s service records are not available for review with this case.  An 
exhaustive search was conducted to locate his service records which are necessary in 
the processing of his case, with no success.  The case is being considered based on 
the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty).

   b. His DD Form 214 (Certificate of Release or Discharge) shows that he entered 
active duty on 3 June 1970.  He was discharged from active duty on 31 January 1991 
with an honorable characterization of service under the provision of Army Regulation 
(AR) 635-100 (Personnel Separations – Officer Personnel), chapter 4 (Retirement).  His 
DD Form 214 shows he completed 20 years, 5 months and 28 days of active service.

	c.  DD Form 215 (Correction to DD Form 214) dated 4 December 1990, corrected 
item 12b (Separation Date This Period) to read 30 November 1990.

5.  Information obtained from Defense Finance and Accounting Service Retirement and 
Annuity Branch shows there was no original retirement documents in his records.  
However, after the FSM passed away, the former spouse applied for the annuity.  At 
this time, no annuity had been established.

6.  By law, a person who is eligible to participate in the Plan under paragraph (1) (A) 
and who is married or has a dependent child when he becomes entitled to retired pay, 
unless he/she elects (with his/her spouse’s concurrence, if required under paragraph 
(3)) not to participate in the Plan before the first day for which he/she is eligible for that 
pay.    



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was 
warranted.  The applicant’s contentions were carefully considered.  The evidence 
provided shows the FSM was to elect former spouse SBP coverage as ordered by the 
court; however, he did not make the election, and the applicant did not deem an election 
within one year of the divorce.  The applicant contends the FSM informed her he 
submitted the divorce documents to DFAS.  The Board agreed to correct the record to 
show she deemed a former spouse SBP election within a year of their divorce.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by showing she properly 
deemed a former spouse Survivor Benefit Plan (SBP) election on 1 January 2006, and 
her election was received and processed in a timely manner by the appropriate DFAS 
office.   

	  
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.  Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP), as in effect 
at the time, it essentially states, in pertinent part, a person who is eligible to participate 
in the Plan and who is married or has a dependent child when he/she becomes entitled 
to retired pay, unless he/she elects (with his/her spouse’s concurrence, if required) not 
to participate in the Plan before the first day for which he is eligible for that pay.

Subparagraph (3) (Former coverage by persons already participating in), election of 
coverage, a person who is a participant in the Plan and is providing coverage for a 
spouse or a spouse and child (even though there is no beneficiary currently eligible for 
such coverage), 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, termination of previous coverage, any such 
election terminates any previous coverage under the Plan; manner and time of election, 
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.

3.  Title 10 USC, section?1450 (Payment of annuity: beneficiaries), effective as of the 
first day after the death of a person to whom section 1448 of this title applies or on such 
other day as that person may provide a monthly annuity under section 1451 of this title 
shall be paid to the person’s beneficiaries under the Plan.

Subparagraph (2) (Limitation on change in beneficiary when coverage in effect), a 
person who, incident to a proceeding of divorce, dissolution, or annulment, is required 
by a court order to elect under section 1448(b) of this title to provide an annuity to a 
former spouse (or to both a former spouse and child), or who enters into a written 
agreement (whether voluntary or required by a court order) to make such an election, 
and who makes an election pursuant to such order or agreement, may not change that 
election unless, of the following requirements, whichever are applicable in a particular 
case are satisfied: in a case in which the election is required by a court order, or in 
which an agreement to make the election has been incorporated in or ratified or 
approved by a court order, the person furnishes to the Secretary concerned a certified 
copy of a court order which is regular on its face and which modifies the provisions of all 
previous court orders relating to such election, or the agreement to make such election, 
so as to permit the person to change the election; and certifies to the Secretary 
concerned that the court order is valid and in effect.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170007949

4

1