ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20170019394


APPLICANT REQUESTS: correction of her deceased former husband’s records, a former service member (FSM), be corrected to show her entitlement to his Survivor Benefit Plan (SBP) annuity based on his death.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Divorce Decree (Interlocutory Judgment)
* Income and Expense Family Declaration(s)
* Request for Default Settings
* Request and Declaration for Final Judgment of Dissolution of Marriage
* Certificate of Death
* Letter, dated 6 December 2016, from the Defense Finance and Accounting Service (DFAS)
* Letter, dated 23 March 2017 from DFAS denying the SBP annuity
* Letter, dated 8 May 2017, from DFAS denying the SBP annuity

FACTS:

1.  The applicant states her former husband, a retired colonel (COL), intended for the former spouse to receive a former spouse SBP annuity.  At the time of divorce in 1981, the FSM was unable to have it annotated into the Divorce Decree because the courts were not allowed to annotate it option until 1986.  In addition, he was not aware that he needed to make the election within one year of divorce date.  He continued to make payments on the SBP and kept his former spouse in his finance account in hopes to give it to her.  They were married for 32 years and neither remarried after divorce.  She asks that the record be fixed to make her the sole beneficiary for a former spouse SBP.  

2.  A review of the FSM’s records shows: 

	a.  He was born on 8 October 1924.  He and the applicant were married on 26 June 1948.

	b.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 24 February 1945.  

	c.  He served in a variety of assignments and attained the rank of COL in June 1969.

	d.  On 10 March 1969, Headquarters, Sixth U.S. Army issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

	e.  On 24 March 1975, the FSM was removed from the active USAR status and transferred to the Retired Reserve after having completed maximum years of service.

	f.  On 30 January 1981, the FSM and applicant were divorced.  Their divorce documents read:

		(1)  front page, “all benefits inuring to the parties by reason of [FSM’s] U.S. Army pension, LA Teachers Association pension, social security, under any and all policies of life insurance, shall be paid to the [FSM] for as long as he lives.  Upon his death, said benefits shall transfer to [Applicant].  If [Applicant] shall predecease [FSM], said benefits shall be paid to the children of the parties, or their issue, upon the principle of representation.  [FSM] shall maintain all existing policies of life insurance and shall designate [Applicant] as the primary beneficiary there under, and the children of the parties as the equal secondary beneficiaries thereunder.

		(2)  Page 4, similar language to that shown on the front page. 

	g.  On 8 October 1984, he was retired and placed on the retired list in the rank of COL on his 60th birthday. 

	h.  One of the FSM’s Retiree Account Statement, dated December 2003 shows in the Remarks block that the FSM elected to participate in the SBP, spouse coverage, and the applicant’s name is listed as the beneficiary.  

	i.  The FSM died on 11 November 2016.  His death certificate listed his marital status as “Divorced.”  

	j.  Following his death, on 6 January 2017, the applicant submitted a DD Form 2656-7 (Verification for Survivor Annuity).  She requested payment of the SBP annuity as a former spouse. 

	k.  On 23 March 2017, DFAS twice wrote to the applicant in reply to her correspondence concerning her eligibility to receive an annuity under the SBP of her deceased former spouse.  After reviewing the FSM’s account, DFAS determined that she was no entitled to receive an annuity under SBP.  Her claim was denied in full.  In their letter, DFAS explained the following: 

		(1)  The SBP gives retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors.  Upon retirement, no former spouse election is notated and no deemed election DD Form 2656 with a divorce decree awarding SBP to former spouse elected to cover her under SBP.  A spouse loses eligibility as a spouse beneficiary upon divorce.  Retirees have the option to change their spouse coverage to former spouse coverage upon divorce.  For this to become effective, DFAS must receive a request from the retiree within one year of the divorce.  

		(2)  If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage.  The request for a deemed former spouse election must be received within one year of the divorce.  A divorce decree alone does not constitute a deemed election.  Her former spouse did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by her.  

		(3)  This denial is the final decision of DFAS on this claim.  She had the right to submit an appeal of this determination of the Defense Office of Hearing and Appeals (DOHA).  In order to begin this appeal, she was told to file an appeal with DFAS within 30 days of the date of this letter.  

	l.  She petitioned DOHA and claimed the FSM had extenuating circumstances in that he began to exhibit early on-set of dementia that may have caused him to overlook and correspondence that would have notified him of the necessary process for claiming former spouse election. 

	m.  On 8 May 2017, DFAS denied her annuity again and informed her of the same information mentioned in their first letter.

5.  By law (Title 10, U.S. Code, section 1448), SBP elections are made by category, not by name.  

	a.  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.  

	b.  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, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage.  A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election.

6.  Periodically, Congress authorizes an Open Season to allow retirees certain changes to their SBP participation or non-participation.  All of these open enrollment seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.

* Public Law 97-35, enacted on 12 August 1981, established an open enrollment season for SBP from 1 October 1981-30 September 1982 
* Public 101-189, enacted on 29 November 1989, established an open enrollment season from 1 October 1991-30 September 1992 (amended to 1 April 1992-31 March 1993).  Public Law 108-375, enacted on 28 October 2004, established an open enrollment season from 1 October 2005-30 September 2006 

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.  The Board reviewed and concurred with the DFAS notifications as the reasons for denial were in compliance with public law.  Based upon the preponderance of evidence, the Board determined 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.
	 
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.

ABCMR Record of Proceedings (cont)	 AR20170019394


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