ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20180001495 APPLICANT REQUESTS: the military records of her former spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election from spouse to former spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * License and Certificate for Marriage * FSM Death Certificate * Decree of Divorce FACTS: 1. The applicant states the SBP annuity was court-ordered and that neither party had remarried. 2. Review of the FSM's records shows: a. The FSM was born on 14 April 1958. He would have turned 60 on 18 November 2018. b. The FSM served in the Regular Army from 13 July 1976 to 22 November 1983. He and X___, the applicant, were married on 5 June 1980. c. He enlisted in the U.S. Army Reserve (USAR) on 23 November 1983. He served through multiple reenlistments in a variety of assignments. d. On 17 June 1998, the USAR Personnel Command issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter advised him that: He is entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) established by Public Law 95-397. This plan enables him to provide an annuity for his spouse, and other eligible beneficiaries. By law, he had only 90 calendar days from the date he received this memo to submit his DD Form 1883, SBP Election Certificate. If he did not submit his election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60. If he did not elect coverage and should die before age 60, his survivors would not be entitled to benefits. e. On 22 June 1998, the FSM and applicant were divorced. Their divorce decree awarded the applicant 50% of the FSM’s monthly military retirement benefits plus the same percentage of any cost of living increases as authorized by Congress in future years; said payments to commence on the first day of the first month following the entry of this Decree and to continue for the life of either FSM or applicant or for so long as FSM has the right to receive said retired or retainer pay. The SBP was not addressed. f. On 9 September 1999, the FSM completed a DD Form 1883. He indicated that he was unmarried, but had a dependent child (born in December 1986, not disabled). He elected “children only’ RCSBP coverage, Option C, based on the full amount. He and a witness signed the election. g. On 13 October 1999, the FSM was transferred to the Retired Reserve. He had completed 22 years, 5 months, and 1 day of qualifying service for non-regular retirement. h. The FSM died on 20 December 2016. His death certificate shows he was divorced and had no surviving spouse. He was 58 years of age. i. There is evidence the FSM elected “spouse” SBP coverage. There is also no evidence the FSM changed his SBP election from “spouse” to “former spouse” within one year of their divorce. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. Public law provides a suspense for changing a SBP election after divorce. There is no evidence the FSM attempted to change the SBP election during the period in which he was allowed. The Board cannot assume he intended to switch the election to former spouse because he only selected coverage for the children when given the opportunity to make an election after the divorce. The Board determined this evidence shows the FSM made a conscious choice not to elect former spouse SBP coverage. 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) AR20180001495 4 1