ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20180010884 APPLICANT REQUESTS: * as the former spouse of a retired service member (SM), she requests the military records of her former husband be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within one year of their divorce * personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Final decree of divorce, dated 21 December 2015 * Petition for rule to show cause, undated * Excerpt, Houston Herald, dated 20 August 2018 FACTS: 1. The applicant states her former husband failed to comply with the terms of their Property Settlement Agreement (PSA) and final decree of divorce when he did not file the necessary paperwork with the Defense Finance and Accounting Service (DFAS) to change the SBP designation to "former spouse" in his military records. His refusal to adhere to the PSA affects her Army entitlements to include (but not limited to) SBP, military retired pay, and identification card benefits as a former spouse. As stated on page 11 of the PSA, "immediately upon dissolution of the marriage, the husband shall take all necessary steps to designate the wife as a "former spouse," as the sole beneficiary of the current amount of a survivor's benefit to the exclusion of any future wife or dependent children of the husband." Additionally, the PSA states: "the husband shall provide the wife with documentation that said designation has been made." 2. The applicant provides: a. DFAS letter, dated 24 January 2018, that states in pertinent part, they received her request for a SBP deemed election in accordance with Title 10 USC, section 1450(f)(3). The request could not be approved because the court order submitted was not received within one year of being issued by the court. The PSA, which was incorporated into the final decree of divorce, did provide for former spouse survivor benefits and the election would have had to have been received within one year from the decree of divorce not the subsequent qualifying court order, dated 20 September 2017. b. Petition for rule to show cause, undated, showing the applicant petitioned the court for the Service Member’s (SM)’s violation of certain provisions of the PSA that were incorporated into the final decree of divorce. c. Excerpt from the Houston Herald, dated 20 August 2018, providing details of an alleged murder committed by the SM. 3. The applicant contends her former husband's military records should be corrected to show he changed his SBP election from "spouse" to "former spouse" coverage within one year of their divorce. 4. The SM’s record shows he had prior enlisted service in the Mississippi Army National Guard. The SM enlisted in the Regular Army on 1 October 1986. He served in a variety of assignments and attained the rank/grade of command sergeant major (CSM)/E-9. 5. On 7 May 2010, in connection with his upcoming retirement, he completed a DD Form 2656. This form shows the SM was married to the applicant on 17 December 1992, and they had two children: * section 5 (Designation of Beneficiaries for Unpaid Retired Pay), the SM designated 100% of unpaid retired pay to his spouse Mrs. X_ X_ X_, and his daughter X_ X X_ and his son X_ X X_ (16 and 12 years old respectively at the time of the application in 2010) * section 8 (Dependency Information), he listed the applicant and his dependent children (neither of the children were disabled) * section 9 (SBP Election), item 26 (Beneficiary Category) he selected “I elect coverage for spouse only” and 27 (Level of Coverage), full gross pay * he and an Army SBP counselor endorsed this form with their signatures on 7 May 2010 6. He retired on 31 August 2010 and he was placed on the retired list in his retired rank/grade of CSM on 1 November 2010. 7. On 12 May 2015, the applicant and the SM entered into a PSA. a. The PSA addresses their intent for the PSA to become a part of any decree, which may be entered by any court of competent jurisdiction to which either party may resort for purposes of divorce and it would be made an enforceable part of any decree. It further addresses waiver of estate claim, mutual release, waiver of equitable distribution rights, reconciliation, spousal support, medical insurance/post exchange privileges, commissary, TRICARE, and use of other base facilities for one year or as long as she was eligible, home, household furniture and personal effects, liquid assets/accounts, vehicles, retirement accounts (savings, individual retirement account), military retirement pay (50% payable to the applicant monthly). b. The PSA states at the time of the SM’s retirement, he elected for the applicant to an annuity under the SBP. The election would continue in effect until the date of entry of a final decree of divorce between the parties. Immediately upon dissolution of the marriage, the SM would take all steps necessary to designate the applicant as the “former spouse” and as the sole beneficiary of the current amount of survivor’s benefit to the exclusion of any future wife or dependent children of the husband. He would provide the applicant with documentation that the designation was made and he would execute all necessary documents to assure direct payments to the applicant. 8. On 21 December 2015, the applicant and the SM were divorced. The divorce decree addresses custody, unreimbursed medical expenses, and healthcare coverage for the minor child and former spouse, and spousal and child support. The PSA was incorporated into the final decree of divorce. 9. There is no evidence in the SM’s record showing he made any changes to his SBP from “spouse” to former spouse” coverage. 10. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board finds the former spouse is entitled to the SBP by virtue of the divorce decree and its incorporation of the terms of the settlement agreement. There is no impediment to relief and correcting the record so that the former spouse can have what the Court intended is entirely equitable. 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 a. Showing the retired service member (applicant's former spouse) made a change to his Survivor Benefit Plan election from "spouse" to "former souse" coverage, based on the full gross pay, within one year of their divorce on 21 December 2015; and b. Showing the Defense Finance and Accounting Service timely accepted and processed his request. 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. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. 3. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. 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. 5. Title 10, U.S. Code, 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 1 year of the date of the court order or filing involved. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20180010884 0 3 1