ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 August 2019

	DOCKET NUMBER:  AR20170008136


APPLICANT REQUESTS:  she be named the former spouse beneficiary of her then husband’s Survivor Benefit Plan (SBP)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
Reconsideration request

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150014135 on 26 January 2017.

2.  The applicant states, in a letter dated 1 March 2017, she believed she was saying no to a reduced SBP annuity, because $300 was what her then husband had allotted to their family the entire time he was in the military.  Although she notes that her letter is a continuation of a letter dated 28 February 2017, that letter is not present in the file.  

3.  A review of the applicant’s former spouse, a former service member (FSM) service record shows:

     a.  He enlisted in the Regular Army on 15 November 1967 according to DA Form 2339 (Application for Voluntary Retirement).

     b.  The FSM and the applicant got married on 14 August 1971.

     c.  He retired on 28 February 1993.

     d.  On 12 February 1993, in conjunction with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on which he elected SBP coverage for spouse and children based on the reduced amount of $392.  

     e.  Separated at the time, the applicant was notified via mail of his SBP election and her rights with respect to that election.  On 18 February 1993, she executed a statement in which she non-concurred with his attempt to provide less than maximum coverage.
     f.  The applicant and the FSM divorced on 30 August 1993.  

     g.  On 12 June 1995, the Court entered a “Judgment on Reserved Issues” in which, among other things, the applicant was awarded the following:

* “one-half of the community interest in respondent’s military retirement/pension benefits accumulated as a result of his service” 
* “any and all benefits allowed by the United States Army as a result of this marriage exceeding 20 years such as identification cards for theater, commissary, BX exchange and unlimited medical services for petitioner and the children of their marriage

     h.  On 25 January 1996, the Retirement Services Office (RSO) at Fort Shafter, Hawaii responded to an inquiry from applicant’s attorney, X__ X__ X__, informing him that applicant’s former husband was not enrolled in SBP.  The RSO acknowledged applicant’s non-concurrence to her then husband’s election and speculated that the SBP was either not properly processed or that the election had somehow been changed.  He recommended that applicant’s attorney contact the Defense Finance and Accounting Service to discuss her case.  

     i.  On 5 May 2015, the applicant completed a DD Form 2656-10 (Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election.

     j.  The applicant’s former spouse remains subject to legal action.

4.  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 the relief was not warranted.  The applicant’s contentions were carefully considered.  Evidence of record shows she did not concur with the FSM’s election to decline coverage when they were still married.  Therefore, she was still the beneficiary while they remained married.  However, they divorced and the divorce decree did not specify a SBP election.  Without the court ordering him to do so upon their divorce, the SBP election was optional for the FSM, and the applicant was not eligible to make a deemed election.  The record is absent evidence that shows the FSM intended to elect former spouse coverage after their divorce.  Based upon the preponderance of the evidence, the Board agreed to deny 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.
	 
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, 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//

ABCMR Record of Proceedings (cont)	 AR20170008136


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