ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170019175


APPLICANT REQUESTS:  correction of the records of her former husband’s records, a 
retired service member (RSM) Survivor Benefit Plan (SBP) election to show former 
spouse coverage

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	A letter from her attorney
*	An affidavit from applicant
*	An affidavit from her retired former spouse
*	A denial letter from the Defense Finance and Accounting Service (DFAS)
*	A DD Form 2656 (Data for Payment of Retired Personnel)
*	A Domestic Relations Order [Military Retirement]

FACTS:

1.  The RSM entered active duty on 29 May 1993.

2.  The applicant, through counsel, states she should be designated as the former 
spouse beneficiary of her former husband’s SBP as agreed in their divorce.  Her former 
husband’s current pay records show her as the spouse beneficiary, but she has since 
been informed that the record needs to show her as the former spouse beneficiary.  
Though they divorced in March 2016, neither of them was able to secure an attorney to 
prepare the appropriate Domestic Relations Order until April 2017.  When the order was 
submitted DFAS rejected it as untimely, because it was not submitted within one year of 
their divorce.   

3.  The applicant provides:

     a.  A letter from her attorney, dated 29 September 2017, explaining the issue.
 
     b.  An affidavit from the applicant executed before a notary public on 21 September 
2017 attesting to the facts that she and her husband divorced in Travis County, Texas 
on 1 March 2016 and that they agreed as part of their divorce that she would be named 
the beneficiary of his SBP.  She also states that neither she nor her former husband has 
remarried and she requests her former husband’s retirement records be modified to 
reflect such designation.   

     c.   An affidavit from applicant’s former husband executed before a notary public on 
20 September 2017 attesting to the facts that he and applicant divorced in Travis 
County, Texas on 1 March 2016 and that they agreed as part of their divorce that she 
would be named the beneficiary of his SBP.  He also states that neither he nor applicant 
has remarried and that he requests his retirement records be modified to reflect such 
designation.

     d.  A letter from DFAS to the applicant, dated 21 July 2017, denying her request for a 
deemed election of SBP, because it was received more than one year after the court 
order was filed.  

     e.  A DD Form 2565, dated 7 March 2013.  In relevant part, it shows that applicant’s 
then husband was retiring effective 1 June 2013 and that he elected full spouse and 
children coverage under SBP for the benefit of applicant and their three minor children.  

     f.  A Domestic Relations Order [Military Retirement], dated 5 May 2017.  With 
respect to SBP, the Court found that applicant was presently named the spouse 
beneficiary of her former husband’s SBP and that the SBP benefit to her should be 
continued by designating her a former spouse beneficiary under SBP.  The parties were 
ordered to cooperate with one another and with DFAS in the event that DFAS failed or 
refused to acknowledge applicant’s deemed election as former spouse beneficiary.         

4.  The applicant’s former husband’s DD Form 214 (Certificate of Release or Discharge 
from Active Duty) shows he was honorably retired for length of service effective 1 June 
2013.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief 
was warranted.  Based upon the agreed upon divorce terms and the notarized 
statement from the applicant’s former spouse, the Board concluded it would create an 
injustice to not allow the applicant to obtain the SBP coverage of her former husband.  
For that reason, the Board recommended changing the applicant’s former husband’s 
record to show that he modified his SBP coverage to former spouse within one year of 
their divorce on 1 March 2016.



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’s 
former husband changed his SBP election from spouse to former spouse, that 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, 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.        

ABCMR Record of Proceedings (cont)	 AR20170019175

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