ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180001841 APPLICANT REQUESTS: entitlement to 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) * Denial Memorandum from the U.S. Army Human Resources Command * DD Form 1883 (SBP Election Certificate) * FSM Death Certificate * Marriage Certificate * Final Judgment and Desolation of Marriage * W-4 Form and Direct Deposit Forms * FSM 20-Year Letter * DD Form 2656-7 (Verification for Survivor Annuity) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 she was unaware of the 6-year deadline. She thought she (or the FSM) had to be of retirement age 3. Review of the FSM’s records shows: a. The FSM was born on 2 August 1953. He would have turned 60 on 2 August 2013. He and X___, the applicant, were married on 12 February 1981. b. The FSM enlisted in the Florida Army National Guard (FLARNG) on 1 February 1972. He served through multiple extensions in a variety of assignments. a. c. On 17 July 1992, the FLARNG 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. d. On 20 March 1993, the FSM completed a DD Form 1883 (SBP Election Certificate). He indicated he was married to the applicant and they had a daughter (born June 1974) and a son (Born February 1972). He elected “spouse and children” Reserve Component Survivor Benefit Plan (SBP) coverage, under Option C (immediate coverage) based on an unspecified amount (he did not mark full or reduced). He and a witness signed this form and his then spouse, the applicant, concurred with his election. e. On 25 May 1998, the FSM was separated from the ARNG and transferred to the Retired Reserve. f. On 10 March 2000, the FSM and applicant entered into a Marital Settlement Agreement. The applicant did not provide such agreement. She provides a one-page Final Judgment and Desolation of Marriage, dated 18 April 2000 that incorporated their Marital Settlement Agreement. This document does not address the SBP. g. The FSM’s death certificate is not very legible. He died on 28 December 2005. He was 52 years of age. His marital status and/or the informant’s name are not legible. h. There is no evidence the FSM changed his SBP election from “spouse and children” to “former spouse” within one year of their divorce. Likewise, there is no evidence the applicant deemed the election within one year of their divorce. i. On 1 July 2017, the applicant submitted a Verification of Survivor Annuity form (DD Form 2656-7), a form used by the surviving spouse, dependent child(ren), surviving former spouse(s), and/or natural persons with an insurable interest to verify eligibility for an annuity under the Retired Serviceman's Family Protection Plan (RSFPP), Survivor Benefit Plan (SSP), and/or Reserve Component Survivor Benefit Plan. j. On 28 November 2017, she received a letter from HRC that informed her that her application for SBP annuity based on the military service of her late husband, is denied. According to Title 31 of U.S. Code, Section 3702, any claim against the government must be submitted within six years. The statute of limitation for her claim was reached a. on 28 December 2011 and unfortunately HRC does not have jurisdiction to process her application. 5. By law (Title 31 U. S. Code, section 3702, also known as the Barring Act), prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. 6. 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 determined that relief was not warranted. Based Title 10, USC stating that there is no provision for a former spouse to automatically receive SBP and it must be completed through a known election by the service member and there is no evidence a change was executed in this case. The applicant did not provide evidence that the FSM was required to continue SBP as a result of their marriage dissolution. The Board concluded there was insufficient evidence to show that making a change to the SBP coverage of the FSM was appropriate. For that reason, the Board recommended denying the applicant’s requested 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. 7/25/2019 X CHAIRPERSON Signed by: 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 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 31 U. S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 3. 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. 4. 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. 5. 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.