ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170014225 APPLICANT REQUESTS: payment of the Survivor Benefit Plan (SBP) annuity based on the death of her former husband, a former service member (FSM) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Death (March 2017) * Marriage Certificate (August 1959) FACTS: 1. The applicant states she is entitled to the pension and full SBP annuity. She was married to the FSM in 1959 and was never divorced from him. If he was married to anyone else during the same time, such marriage is not a legal marriage. She has been trying to get survivor benefits since his death on 11 March 2017. She has sent all the documents she has. He has 2 adult kids with her. She believes she is entitled to the pension and should receive it. She also believes she is entitled to a lump payment from his retirement date in 1991. If she had known of his alleged marriage to someone else while still being married to her she would have filed for divorce from him and gone after his pension and asked for alimony from him. She has learned that someone else had received part of his pension they were never entitled to. She asks that the FSM's military records be corrected to show her as the beneficiary and to be awarded his pension and back payments. 2. The applicant provides a statement from someone with the same last name as hers. The author states the applicant was married to the deceased in 1959. They were never divorced. He was away a lot because of deployments. They stayed in contact throughout the years. She never filed for divorce and neither did he. They do not have notarized SBP paperwork. The applicant is home bound and it would be very difficult to get one now. She and the deceased had an agreement that was she could get death benefits if he died before her. Had he not agreed to that, she could have filed for divorce and taken half his pension and SBP benefits. But, because she owned a house and he did not, they agreed that she would not take from him while he is still alive. She never knew he had stopped the SBP plan. They found out after his death that he may have married someone else without getting divorced from the applicant. If she had known she would have filed for divorce and gone after his pension and benefits. The author adds that they believe the applicant is entitled to full benefits, from the time he retired, and death benefits. She and the FSM had 2 adult kids from the marriage, XX was born in XXXX and XX was born in XXXX. 3. The applicant provides an archived copy of a marriage document certifying the FSM and Mar (the applicant) having been married on 29 August 1959. 4. Review of the FSM's service records shows: a. The FSM was born in February 1936. Having had prior service in the Army National Guard, U.S. Marine Corps, and Regular Army (RA), he reenlisted in the RA on 21 June 1978. b. His DD Form 93 (Record of Emergency data) show he was married to XX (someone else other than the applicant). c. On 21 August 1983, in connection with his upcoming retirement, the FSM submitted a DA Form 4240 (Data For Payment of Retired Army Personnel). He indicated that he was married to XX and they had dependent children. * He named his spouse XX as the beneficiary of unpaid retired pay * He elected "spouse" SBP coverage based on the full amount * He and the Retirement Services Officer authenticated this election with their signatures. d. The FSM retired on 30 September 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 20 years of active service. e. The FSM died on 11 March 2017. His death certificate shows he was divorced and his sister was the informant. f. On 22 May 2017, DFAS corresponded with XXX (the applicant) and advised her that the FSM made an SBP election and charges for SBP were not being deducted from his retired pay as required by original election at the time of retirement, but no claim for SBP has been filed. In order to begin closing out his account, DFAS would need the marriage certificate, divorce decree, and FSM death certificate. g. On 6 July 2017, DFAS again corresponded with XXX (the applicant) and advised her that the FSM made an SBP election and charges for SBP were not being deducted from his retired pay as required by original election at the time of retirement, but no claim for SBP has been filed. DFAS had a an archived copy of a marriage certificate indicating they were married in 1959, but there is also record that the FSM married XX at some time afterwards. DFAS needed a copy of the FSM and XX 's marriage certificate and either her certificate of death or divorce decree. h. The applicant's son wrote on the back of this letter "[Applicant] was married to [FSM] in 1959. He never divorced her. I believe she would know if she was divorced and there is no record of that. If he was married to someone named XXX , it was not a legal marriage, and if she had known she would have wanted alimony from him. So we believe XXX is entitled to Survivor Benefits." 5. By law (Title 10, U.S. Code) SBP elections are made by category, not by name. a. The SBP, as defined in Sections 1447-1455, was enacted on 21 September 1972, to provide retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their surviving beneficiaries. Public Law 98-94, dated 24 September 1983, amended the SBP to give retirees the option to change their spouse coverage to former spouse coverage within one year of divorce. Public Law 98-525, enacted on 19 October 1984, further amended the SBP by giving the former spouse of a retiree the option to request that a former spouse election be deemed to have been made by-the retiree. b. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. c. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, there are two requirements for a deemed election to be valid. First, the divorce decree must specifically indicate the former spouse is entitled to coverage under the SBP; and second, the request for a deemed former spouse election must be received within one year of the divorce. 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. It was challenging for the Board to make a fair determination without sufficient evidence showing the FSM was not remarried when his official death certificate shows he was divorced. In addition, there is no record of the FSM ever paying any SBP premiums after his retirement that would make anyone eligible for the receipt of SBP payments. The Board agreed there is insufficient evidence to grant 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 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. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Additionally, Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. 3. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP. It 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 1 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. 4. Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS//