IN THE CASE OF:  

		BOARD DATE:  24 March 2020

		DOCKET NUMBER:  AR20180006563


APPLICANT REQUESTS: in effect, 

*	change her deceased former spouse’s (former service member (FSM)) election 
	for survivor benefit plan (SBP) from spouse coverage to former spouse coverage
*	payment retroactive to the date of death
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	(DD Form 149 (Application for Correction of Military Record)
*	self-authored letter
*	verified transcript of marriage
*	Superior Court of  divorce decree
*	DD Form 2656 (Data for Payment of Retired Personnel)
*	DD Form 2293 (Application for Former Spouse Payments from Retired Pay
*	State of Certificate of Death

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code § 1552(b); however, the 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 effects, requests that the Board change the FSM’s election 
for SBP from spouse coverage to former spouse coverage as ordered in the divorce 
decree.

3.  The applicant provides:

	a.  Self-authored letter to Army Review Boards Agency (ARBA) that states the FSM 
was deceased on 7 January 2016 and their divorce decree specifies that he was to 
provide her 50 percent of his retirement annuity and payments for the SBP which she 
was paying half of the monthly premiums through the deduction from the monthly 
alimony payments that the FSM was making.  She submitted the claim application for 
the SBP however, never heard anything back from Defense Finance and Accounting 
Service (DFAS).  She requests that she be made the SBP beneficiary as the FSM’s 
former spouse, be paid the annuity and receive back payments for the SBP to the date 
of the FSM’s death.

	b.  Verified transcript of Register of Marriages that shows the FSM and the applicant 
were married on 11 August 1973.

	c.  Superior Court of NJ divorce decree that shows the FSM and the applicant were 
divorced on 30 June 1998.  The FSM was ordered to pay 5o percent of his military 
pension and the premium for the SBP was to be split equally in order to receive the 
benefit.

	d.  DD Form 2656 dated 16 May 1997 shows the FSM elected SBP coverage for 
spouse only based on full gross pay.

	e.  DD Form 2293 that shows the applicant applied for former spouse payment from 
retired pay on 14 April 2000 at a rate of 50 percent.

	f.  State of MD certificate of death that shows the FSM was deceased on 
7 January 2016.

4.  A review of the FSM’s service records shows:

	a.  The FSM’s service records are void of any evidence of his entrance into the 
Armed Forces.  His DD Form 214 (Certificate of Release or Discharge) shows that he 
entered the Regular Army (RA) on 24 March 1975.

	b.  DD Form 2656 dated 16 May 1997 shows the FSM elected SBP coverage for 
spouse only based on full gross pay.

	c.  He was released from active duty on 30 June 1997 with an honorable 
characterization of service and assigned to the United States Army Reserve Control 
Group (Retired Reserve).  His DD Form 214 shows that he completed 22 years, 
3 months, and 7 days of active service.

	d.  The FSM was placed on the retired list on 1 July 1997.

5.  Information obtained from Defense Finance and Accounting Service Retirement and 
Annuity Branch shows the only DD Form 2656 on file was completed 16 May 1997 
where he elected spouse only nor did he or the applicant submit the deemed election 
form within 1 year of their divorce.
6.  By law, a person who is eligible to participate in the Plan under paragraph (1) (A) 
and who is married or has a dependent child when he becomes entitled to retired pay, 
unless he/she elects (with his/her spouse’s concurrence, if required under paragraph 
(3)) not to participate in the Plan before the first day for which he/she is eligible for that 
pay.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was warranted.  One potential outcome discussed was to deny relief based upon 
the untimely notification of the divorce by not changing the SBP coverage as directed in 
the divorce decree, as well as the lack of knowledge about the martial status of the FSM 
at the time of his death.  However, based upon the evidence in the record showing the 
applicant was listed as the beneficiary and the directive in the divorce decree, the Board 
concluded there was sufficient evidence to show that the applicant’s intent was to have 
the applicant as the beneficiary.  As a result, the Board concluded there was sufficient 
evidence to warrant changing the FSM’s SBP coverage from spouse coverage to former 
spouse coverage effective 30 July 1998 (within one year of the approved divorce).

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:XX	:	:XXX	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:XX	:	DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the FSM 
changed his SBP election from spouse to former spouse on 30 July 1998 (within one 
year of his divorce) and the request was received and processed by the appropriate 
office in a timely manner.
		  
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, United States Code § 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 (ABCMR) determines it would be in the interest of justice to do so.

2.  Title 10, USC § 1448, establishes the Survivor Benefit Plan (SBP), as in effect at the 
time, it essentially states, in pertinent part, a person who is eligible to participate in the 
Plan and who is married or has a dependent child when he/she becomes entitled to 
retired pay, unless he/she elects (with his/her spouse’s concurrence, if required) not to 
participate in the Plan before the first day for which he is eligible for that pay.  
Subparagraph (3) (Former coverage by persons already participating in), election of 
coverage, a person who is a participant in the Plan and is providing coverage for a 
spouse or a spouse and child (even though there is no beneficiary currently eligible for 
such coverage), and who has a former spouse who was not that person’s former 
spouse when that person became eligible to participate in the Plan, may elect to provide 
an annuity to that former spouse, termination of previous coverage, any such election 
terminates any previous coverage under the Plan; manner and time of election, 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, 
dissolution, or annulment.

3.  Title 10 USC §?1450 (Payment of annuity: beneficiaries), effective as of the first day 
after the death of a person to whom § 1448 of this title applies or on such other day as 
that person may provide a monthly annuity under § 1451 of this title shall be paid to the 
person’s beneficiaries under the Plan.  Subparagraph (2) (Limitation on change in 
beneficiary when coverage in effect), a person who, incident to a proceeding of divorce, 
dissolution, or annulment, is required by a court order to elect to provide an annuity to a 
former spouse who enters into a written agreement (whether voluntary or required by a 
court order) to make such an election, and who makes an election pursuant to such 
order or agreement, may not change that election unless, of the following requirements, 
whichever are applicable in a particular case are satisfied: in a case in which the 
election is required by a court order, or in which an agreement to make the election has 
been incorporated in or ratified or approved by a court order, the person furnishes to the 
Secretary concerned a certified copy of a court order which is regular on its face and 
which modifies the provisions of all previous court orders relating to such election, or the 
agreement to make such election, so as to permit the person to change the election; 
and certifies to the Secretary concerned that the court order is valid and in effect.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180006563


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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