ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20180010807 APPLICANT REQUESTS: receipt of a Survivor Benefit Plan (SBP) annuity based on the divorce decree ordering her late ex-husband (a former service member (FSM)) to provide SBP benefits to her. 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) * summary translation of marriage certificate, notarized 19 February 1993 * divorce decree, dated 24 July 2002 * FSMs death certificate, dated 4 June 2018 REFERENCES: 1. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (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. 2. Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and reservists. 3. Public Law 98-525, enacted 19 October 1984, provided that a former spouse could request a deemed election within 1 year of the court order requiring SBP to be established on the former spouse's behalf, provided the member agreed to provide coverage. 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. 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 1 year of the date of the court order or filing involved." FACTS: 1. The applicant, A____, the former spouse of the deceased FSM, states she did not speak English very well at the time the court ordered her late ex-husband to provide her SBP benefits. She did not understand military laws and rules. Her attorney informed her that she submitted all the paperwork for her SBP and alimony to the Defense Finance and Accounting Service (DFAS). The applicant received a portion of the FSM's retired pay. She used this money for child support because the FSM did not want to work after he retired. The retirement office at Fort Hood told her there was nothing she needed to do and it was the FSM's responsibility to provide DFAS all paperwork. Whenever the applicant asked the FSM about the paperwork from the court order, he laughed at her. He was a very cruel person and she didn't know what paperwork to submit on her part to make sure her name was on the FSM's record to be the SBP beneficiary. She has since been educated by the casualty assistance center. She is aware that in accordance with Federal law, the former spouse has within a year from the divorce date to deem the SBP election. Because of her previous lack of knowledge of the SBP rules and the Federal law on SBP when the divorce took place, she should have deemed the election. She is asking for consideration and compassion for former spouses who knew nothing, were kept in the dark, and more so for being treated so badly by her late ex-husband. She was married to the FSM for 23 years, 5 months, and 7 days; 17 of those years the FSM served in the military. Currently, she is disabled and receiving $419.00 from social security and receives some support from her children. 2. The applicant provided a summary translation of their marriage certificate, notarized on 19 February 1993, showing they were married on 31 December 1979. 3. The applicant provided their divorce decree, dated 24 July 2002, showing: a. the applicant was granted a divorce from the FSM on 24 July 2002 on the grounds of adultery and cruelty; b. the court found that at the present time the applicant should be named beneficiary under the SBP and the FSM's election to provide SBP benefits to the applicant should be continued and maintained in full force and effect and should not be altered or withdrawn by the FSM during his lifetime; c. the former spouse shall continue to remain beneficiary as former spouse under the SBP; d. the FSM was ordered to immediately obtain, fully complete, sign, and return to the entity required to effect the SBP election all documents, papers, and forms necessary to provide the SBP benefits to the applicant as the FSM's former spouse, and shall simultaneously provide the applicant copies; e. the FSM was ordered to do all other acts, deeds, and things that are necessary to immediately designate the applicant as the beneficiary of the SBP; and f. the FSM was ordered that he shalt not provide, modify, amend, withdraw, or in any other manner alter the election to name the applicant the beneficiary of the SBP. 4. The FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 16 November 2004, shows in: a. Section IX (SBP Election), block 26 (Beneficiary Category(ies)), the FSM elected coverage for his former spouse and dependent children of that marriage; and b. Section IX, block 27 (Level of Coverage), the FSM elected coverage based on full gross pay without supplemental SBP. 5. U.S. Army Combined Arms Support Command and Fort Lee Orders 215-0503, dated 2 August 2004, released the FSM from active duty and placed him on the Retired List effective 31 July 2005. 6. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on 31 July 2005. 7. The applicant provided the FSM's certificate of death, dated 4 June 2018, showing the FSM passed away on. He was married to A____ at the time of his death. 8. On 31 March 2020, an email from the Defense Finance and Accounting Service Retired and Annuity Pay Section states the FSM was paying premiums in the amount of $134.78 at the time of death. The FSM’s annuity was established for his current wife, A____, on 27 August 2019 with an effective date of 2 June 2018. The retroactive payment to A____ was made on 17 September 2019 and regular payments began on 1 October 2019. The account is in a paying status. In a previous Congressional inquiry, it was determined that the former spouse was not entitled to the SBP. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the FSM’s military record, a DFAS advisory opinion, and regulatory guidance were carefully considered. Public law provides a suspense for changing a SBP election after retired pay is started. The Board found that the FSM was married at the time of his death. Per DFAS, that individual was receiving the SBP annuity as the surviving spouse. SBP passes by category, not individual. Only one category of SBP beneficiary may receive the annuity at any one time; there is no evidence to show the surviving spouse affirmatively relinquished her SBP interest. The Board concurred with DFAS finding that in a previous Congressional inquiry, it was determined that the former spouse was not entitled to the SBP. The Board determined the evidence presented did not warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010807 4 1