BOARD DATE:  7 February 2020

		DOCKET NUMBER:  AR20170010297


APPLICANT REQUESTS:  on behalf of the Former Service Member (FSM), retroactive 
election of former spouse entitlement under the Survivor Benefit Plan (SBP) 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Memorandum for Record – Request to Correct Failure to Elect Former Spouse 
for Survivor Benefit Plan 
*	Separation Agreement dated 6 October 2011
*	Decree of Dissolution of Marriage (not dated or signed) 
*	Death Certificate dated 18 September 2015
*	Department of Defense Legal Services Agency Office of Hearings and Appeals 
Decision Letter 
*	DD Form 214WS (DD Form 214 Worksheet)
*	DD Form 2656 (Data for Payment of Retired Personnel)
*	Congressional letter dated 5 April 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 that the records of FSM need to be corrected to reflect the 
timely election of former spouse coverage under the SBP in accordance with her 
divorce decree dated 12 October 2011.  In the alternative, she (the former spouse) 
requests that the records reflect her deemed election of former spouse benefits 
pursuant to their separation agreement.  

3.  A review of the FSM’s service records reflects the following on: 

*	22 March 1983 – he was commissioned as an officer in the Army 
*	11 April 1983 – he was ordered to active duty
*	30 September 2003 (Order# 062-0002) – he retired from active duty and was 
placed on the retired list on 1 October 2003; credited with 20 years, 5 months 
and 20 days of active federal service

4.  The applicant provides the following a: 

a.	Memorandum for Record – Request to Correct Failure to Elect Former Spouse 
for Survivor Benefit Plan provided by legal counsel dated 10 April 2017.  Contained 
within, counsel provides the following chronological account of events: 

*	30 September 2003 – the FSM retired from the military and elected SBP for 
both his spouse and children
*	July 2011 – his youngest child became ineligible for SBP entitlement due to 
age resulting in “spouse only” coverage
*	6 October 2011 – due to the FSM ongoing challenges with prescription 
medication addiction, the applicant and the FSM entered into a separation 
agreement; both parties agreed that the applicant would receive 50% of the 
FSM’s retirement and that neither party would take any action to reduce or 
eliminate the current election to participate in the SBP – each were to pay 
50% toward SBP cost
*	12 October 2011 – the decree of Dissolution of Marriage was issued 
incorporating the separation agreement in its entirety
*	both parties remained on amicable terms despite the divorce
*	13 July 2015 – the FSM died 
*	24 October 2015 – the applicant filed for SBP annuity through the Defense 
Finance and Accounting Service (DFAS) 
*	1 December 2015 – DFAS denied entitlement to the SBP annuity based on 
the FSM failing to make a timely former spouse election and or the applicant’s 
failure to make a timely deemed former spouse election
*	in further disposition, counsel contests that the FSM did not remarry and had 
clearly indicated his intent to provide the applicant with entitlement to the SBP 
annuity; the applicant is currently suffering from extreme hardship in absence 
of the SBP annuity – due to an administrative oversight, she has been 
rendered destitute, her house is being foreclosed on and may now have to file 
bankruptcy

b.	Separation Agreement dated 6 October 2011 – reflective of the following 
statement as it pertains to SBP “Husband and Wife did make an election to 
participate in the SBP.  Neither party will take any actions to reduce or eliminate this 
election nor by virtue of the SBP being deducted from the gross pay, both parties will 
pay 50% of the SBP cost.”

c.	Decree of Dissolution of Marriage (not dated or signed) – reflective of the 
separation agreement being filed with the District Court of ; the separation agreement between both parties was found to be 
unconscionable as to maintenance, division of property and debts and was therefore 
incorporated in the dissolution of marriage between the FSM and the applicant as 
ordered by the court.

d.	Death Certificate dated 18 September 2015 reflecting the FSM’s passing on                   
13 July 2015.

e.	Department of Defense Legal Services Agency Office of Hearings and Appeals 
Decision Letter dated 10 March 2017 reflective of their denial of entitlement to the 
SBP annuity on the grounds that the FSM did not establish former spouse coverage 
nor did the applicant request deemed election as the former spouse within one year 
of their divorce.  Further provided in statement that they acknowledged that 
applicant’s contention with not having a way of knowing that the FSM did not elect 
former spouse coverage.  She assumed all things were in order because she 
received 50% of the FSM’s retirement pay up until he passed.  

f.	DD Form 214 (Certificate of Release or Discharge from Active Duty) dated                       
30 September 2003 reflective of the FSM’s retirement from military service. 

g.	DD Form 2656 (Data for Payment of Retired Personnel) page 1 – reflective of the 
FSM being married at the time of his retirement; the applicant’s name is listed as the 
spouse and one dependent child; page 2 indicating the FSM’s SBP election was not 
included in the submitted packet.

h.	Congressional letter dated 5 April 2019 – reflective of the Honorable D_L_ 
interest in providing assistance to the applicant regarding the termination of her SBP 
payments.  Stated within is that the applicant has waited well over 700 days and had 
not received a response; her house has been foreclosed and she now has medical 
problems. 

5.  Title 10, USC, section 1448(b)(3) 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 one 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.

6.  See additional applicable guidance below under REFERENCES.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was warranted.  Based upon a review of the record showing that the FSM paid 
premiums into an SBP program until his death and he never remarried after divorcing 
the applicant, the Board concluded that there was an error or injustice which would 
warrant a change to the FSM’s record.  The Board found there was a lack of training 
provided to the FSM noting the requirement to make a change to the SBP election upon 
divorcing the applicant and because of that lack of training, an injustice was created 
which warranted correction.

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 the evidence presented is 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 the applicant 
changed his SBP election from spouse to former spouse on 13 October 2011 
(immediately after his divorce) and the request was received and processed by the 
appropriate office in a timely manner.
		  
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, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 years after discovery of the alleged 
error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Title 10, USC, section 1448(b)(3) 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 one 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.

3.  Title 10, USC, section 1450 states that in the event that there is a court order to 
make a former spouse SBP election, but the member fails to do so, the required former 
spouse election to be deemed to have been made if upon request by former spouse is 
required 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 the following (within one year of the date of the 
court filing) 

*	a written request from the former spouse concerned requesting that such an 
election be deemed to have been made
*	a copy of the court order or official statement 

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170010297


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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