ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 January 2021 DOCKET NUMBER: AR20180010625 APPLICANT REQUESTS: in effect, correction of the records of her deceased former husband, a former service member (FSM), to show he changed his Survivor Benefit Plan (SBP) beneficiary from spouse to former spouse and to pay her a SBP annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 16 July 2018 * Marriage Certificate, dated 26 December 1963 * Report and Certificate of Marriage Letter, dated 26 December 1963 (3 pages) * USAFAC Form 20-11 (Jumps-Army Retired/Annuitant Pay Statement), March 1986 * Judicial Council of California 1281 (Petition for Dissolution of Marriage) filed, 23 June 1987, and associated court filings (7 pages) * Marital Settlement Agreement, unsigned and undated (6 pages) * Superior Court of, "Notice of Entry of Judgement," dated 14 April, with attachment * three Certificates of Death 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: a. She was married to the FSM for over 23 years and at the time of their divorce, he agreed to maintain her as the beneficiary of his SBP. She has no proof, but believes the FSM honored her wishes because he never changed the beneficiary of his SBP to his second wife, C___ K___. b. The FSM died in November 2008, and his second wife never applied for an SBP annuity. Her second husband died in January 2016 and the FSM's second wife died in February 2018. c. She is now 75 years old and would like to receive SBP benefits. A Retirement Services Officer advised her to complete an application to the ABCMR for relief. 3. A review of the FSM's service records shows: a. He initially enlisted in the Regular Army on 26 November 1958 and served through one period of reenlistment. On 26 December 1963, he married the applicant, C__C__ K__. b. On 6 January 1967, the FSM was retired from the RA and placed on the Temporary Disability Retired List (TDRL). The Adjutant General, Letter Orders Number D-6-167, dated 4 August 1971, announced his removal from the TDRL effective on 31 August 1971, and his placement on the Permanent Disability Retired List (PDRL) on 1 September 1971. 4. The applicant provides: a. A USAFAC Form 2011, which documents the FSM's retired pay with an effective date of March 1986. It shows he remitted SBP premiums in the amount of $45.96. It does not identify the SBP beneficiary. b. Judicial Council of Form 1281, dated 23 June 1987, which shows the FSM and the applicant petitioned the Superior Court of a for a divorce. c. An undated and unsigned Marital Settlement Agreement between the FSM and the applicant, which does not contain any SBP stipulation. Paragraph V (Waiver of Right Support) states, "In consideration of the other terms of this agreement, both parties waive all right or claim which they may now or may at any future time have to receive support or maintenance from the other. This waiver shall be made part of any dissolution judgment." d. Superior Court of, Notice of Entry of Judgement signed and filed on 14 April 1989, which shows the FSM and the applicant were issued a Dissolution of Marriage adjudged on 14 April 1989. e. Three Certificates of Death that show: * the FSM died on 8 November 2008 * the applicant's second husband died 5 January 2016 * the FSM's spouse at the time of his death died on 8 February 2018 5. On 13 December 2019, an official from the Defense Finance and Accounting Service (DFAS) confirmed the FSM's finance record contained insufficient documents to establish "former-spouse" SBP coverage. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found no evidence indicating the FSM elected former spouse SBP coverage within one year of his divorce from the applicant. The Board also noted that the Marital Settlement Agreement the applicant provided does not indicate that the applicant and the FSM had agreed that she would be the SBP beneficiary after their divorce. Based on a preponderance of evidence, the Board determined the FSM's record should not be corrected to show the applicant as his SBP beneficiary. 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, 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. A member who retired before September 21, 1972 had until March 20, 1974 to elect to participate in the Survivor Benefit Plan. 2. 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. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. 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) AR20180010625 4 1