ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 September 2019

	DOCKET NUMBER:  AR20180003492


APPLICANT REQUESTS: The applicant the former spouse of the Former Service 
Member (FSM) requests to be awarded the Survivor Benefit Plan annuity under the 
Uniformed Services Former Spouses’ Protection Act (USFSPA).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Marriage Certificate, dated 4 June 1977
*	Divorce decree, dated 18 November 1994
*	FSM Death Certificate, dated 27 November 2017
*	Defense Finance and Accounting Service (DFAS) letter, dated 6 January 2018

FACTS:

1.  The applicant states in pertinent part, she was awarded the SBP per the court order, 
dated 18 November 1994.  She did not realize DFAS never received the SBP election 
statement for former spouse coverage.  Her attorney told her he was completing all 
forms with her signature and the FSM’s as well, and she was assured her attorney was 
sending everything to DFAS.  She was married to the FSM for 16 years and 5 months 
and had two children.  Page 11 of the divorce decree ordered the FSM to take all steps 
necessary to assure she would receive the SBP.  She had been receiving 42% of his 
retirement pay.  Since she had been receiving part of his retirement, she thought for 
sure the SBP paperwork was submitted as well like her attorney said, because he sent 
in a request to garnish the FSM’s retirement with the request for former spouse SBP.  
She’s just fighting for what is right and for justice.  She understands the Federal law 
overrides the State law, but the State court ordered was submitted years before the 
FSM remarried.

2.  A review of the FSM’s official records show the following on:

*	25 May 1979 – the FSM enlisted in the Regular Army and served in various 
positions
*	23 January 1990 – the FSM completed DA Form 4240 (Data for Payment of 
Retired Army Personnel) showing in part 2 (Beneficiaries for Unpaid Retired Pay 
or Gratuity) his then spouse Ms. W-and in part 3 (SBP Election) he elected 
spouse and dependent coverage (his children have aged out)
*	30 April 1990 – the FSM was honorably retired from active duty, he completed 20 
years and 28 days of net active service
*	12 August 2019 – DFAS inquiry initiated by the analyst of record returned results 
of an annuity account currently being paid to Ms. W- (the FSM’s current spouse)

3.  The applicant provides:

*	Marriage Certificate showing the applicant and FSM were married on                    
4 June 1977
*	Divorce decree showing the applicant and FSM were divorced on                                 
18 November 1994, and showing under item 8 (SBP) the applicant be designated 
as the recipient and beneficiary of the SBP and the FSM not cancel her as the 
beneficiary or cancel the SBP
*	FSM Death Certificate showing the FSM died on 27 November 2017 and the 
informant was Ms. W- his current wife
*	DFAS letter wherein a DFAS official notified the applicant her entitlement to 
payments under the USFSPA for retired/retainer pay was being terminated

4.  The USFSPA accomplishes two things:

*	it recognizes the right of state courts to distribute military retired pay to a spouse 
or former spouse (hereafter, the former spouse), and
*	it provides a method of enforcing these orders through the Department of 
Defense

The USFSPA does not automatically entitle a former spouse to a portion of the 
member's retired pay.  A former spouse must have been awarded a portion of a 
member's military retired pay as property in their final court order.  The pertinent court 
order must provide for the payment of retired pay as property, to a former spouse.

5.  See applicable SBP laws below.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents and 
evidence in the records.  The Board considered the applicant’s statement, the FSM’s 
record of service, his divorce from the applicant and remarriage, the SBP stipulation in 
the divorce decree, the FSM’s SBP election upon retirement, his death certificate and 
the DFAS document showing the applicant’s spouse at the time of death receiving the 
SBP annuity.  The Board considered the purpose and authorities in the USFSPA as it 
relates to retired pay.  The Board agreed that the divorce decree clearly reflects the 
FSM agreed to continue the applicant as the SBP beneficiary (as the former spouse); 
however, the FSM did not make an election for former spouse coverage within one year 
of the date of the divorce decree. Nor did the applicant deem an election within one 
year.  The Board found that the FSM was married to W_ at the time of his death and 
she is currently receiving an SBP annuity as the surviving spouse. Only one category of 
SBP beneficiary may receive the annuity at any one time – it cannot be divided like 
retirement benefits.  As such, favorable action by the Board on behalf of the applicant 
would result in termination of W_’s SBP annuity as the surviving spouse.  While the 
applicant may have a claim against the FSM’s estate relating to the SBP annuity, such a 
claim is appropriately pursued in the courts and not before the ABCMR.  Based on a 
preponderance of evidence, the Board determined that denial of the applicant’s claim 
for SBP was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found the 
relief was not warranted.?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	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.


ADMINISTRATIVE NOTE(S):

Not Applicable

?
REFERENCES:

1.  The USFSPA accomplishes two things:

*	it recognizes the right of state courts to distribute military retired pay to a spouse 
or former spouse (hereafter, the former spouse), and
*	it provides a method of enforcing these orders through the Department of 
Defense

the USFSPA does not automatically entitle a former spouse to a portion of the 
member's retired pay.  A former spouse must have been awarded a portion of a 
member's military retired pay as property in their final court order.  The pertinent court 
order must provide for the payment of retired pay as property, to a former spouse.

2.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  
3.  Public Law 97-252, the USFSPA, dated 8 September 1982, established SBP for 
former military spouses.  This law also decreed that state courts could treat military 
retired pay as community property in divorce cases if they so choose.  It established 
procedures by which a former spouse could receive all or a portion of that court 
settlement as a direct payment from the service finance center.  The USFSPA contains 
strict jurisdictional requirements.  The State court must have personal jurisdiction over 
the FSM by virtue of the FSM’s residence in the state (other than pursuant to military 
orders), domicile in the State, or consent.

4.  Title 10, United States Code (USC), 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 one 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, USC, 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 
one year of the date of the court order or filing involved.

6.  The Board may not divest the FSM’s widow of her interest in the SBP without an 
order from a State court of competent jurisdiction over the marriage of the applicant and 
the FSM.  This court action would have to include the FSM’s widow as a party in order 
to protect her property interest and rights.  If the court after a proceeding determines 
that the applicant is the proper SBP beneficiary, the applicant can apply to the Board for 
reconsideration.  In the alternative, the Board may reconsider the applicant’s request if 
she obtains a notarized, sworn affidavit from the FSM’s widow renouncing her right to 
the SBP payment.

ABCMR Record of Proceedings (cont)	 AR20180003492
	
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