IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20180003993 APPLICANT REQUESTS: The applicant, the Service Member’s (SM) ex-spouse, requests through counsel, correction of the SM’s record to show her as the Survivor Benefit Plan (SBP) annuitant in accordance with their divorce decree. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656 (Data for Payment of Retired Personnel), dated 5 March 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 July 2003 and allied retirement documents * Property Settlement Agreement, dated 8 December 2004 * Divorce decree, dated 2 May 2005 * Retiree account statement, dated 1 May 2009 * Defense Finance and Accounting Service (DFAS) letter, dated 28 June 2016 * Counsel letter, dated 12 January 2018 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 (ABCMR) 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 in pertinent part through counsel: * the applicant and SM were divorced on 2 May 2005 * the divorce decree adopted their property settlement agreement, which ordered the applicant remain the SBP annuitant, and these documents along with the necessary forms were sent to DFAS * from 2005 – 2016 the applicant had to contact DFAS numerous times related to not receiving the SM’s pay and earnings records and was assured by DFAS she was the SBP beneficiary * on 6 June 2016, the applicant again contacted DFAS and spoke to a DFAS official who confirmed she was the SBP beneficiary and would send her a copy of the documents showing she was the beneficiary * months passed and she did not receive the documents, and she contacted DFAS again, and was asked a litany of questions by a DFAS official who told her they were not in possession of a letter, dated 25 June * DFAS received and processed the paperwork, as shown by the direct payments to the applicant shortly thereafter * even if the deemed election had not been received by DFAS, DFAS affirmatively prevented the applicant from learning or resolving the issue by their representations – repeated numerous times from 2005 – 2013 – that she was listed as the SBP beneficiary 3. A review of the SM’s official records show the following on: a. On 28 April 1981, the SM enlisted in the Regular Army (RA). b. On 27 October 1984, the SM was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). He completed 3 years and 6 months of net active service. c. On 30 January 1987, the SM again enlisted in the RA and served in various positions. d. On 23 June 1990, the SM married e. On 31 July 2003, the SM was honorably retired from active duty. He completed 16 years, 6 months, and 1 day of net active service with 3 years and 6 months of prior active service. 4. The applicant provides through counsel: a. DD Form 2656 showing at the time the SM was married to and they had two children (aged out at the time of this application), and the SM elected coverage for “spouse and child(ren).” b. Divorce decree showing the SM and the applicant were divorced on 2 May 2005, and the decree showed the parties had entered into a valid property settlement agreement a copy of which was attached and incorporated into the divorce decree. c. Property settlement agreement showing in item 6 (Life Insurance) the “wife” and the parties minor children shall remain the beneficiaries of the SM’s SBP. d. SM retiree account statement showing SBP coverage “spouse and child(ren)” coverage. e. DFAS letter wherein the applicant was informed by a DFAS official that her attempt to deem an election of SBP former spouse coverage could not be processed because it was received more than one year after the court order. A spouse lost eligibility as a SBP spouse beneficiary upon divorce. Former spouse coverage was not an automatic benefit. The divorced spouse can become an SBP beneficiary if former spouse coverage is elected by the service member or a deemed election is made by a former spouse on the basis of a court order. f. Counsel letter wherein counsel asserts his representation of the applicant to the Board, and the applicant contends she timely submitted her notice of deemed election to DFAS in 2005 shortly after her divorce. 5. See applicable SBP laws below. BOARD DISCUSSION: After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below. 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 that the evidence presented was 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 that the applicant deem an election of SBP former spouse coverage on 5 October 2005, and provide her the requisite SPB benefits. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records determines it would be in the interest of justice to do so. 2. Title 10, USC: a. Section 1448(f)(3) provides that if a person entitled to retired pay is required under a court order to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan, the Secretary shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election to provide an annuity to the former spouse, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003993 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1