ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20180012804 APPLICANT REQUESTS: The applicant, the former spouse of the Former Service Member (FSM), requests to be the deemed beneficiary of the FSM’s Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense Finance Accounting Service (DFAS) letter dated 9 February 2015 * DFAS denial letter dated 1 December 2015 * DD Form 2293 Application for former spouse payments from retired pay * DFAS Form 1059 (Direct Deposit) * W-4 (Withholding Certificate for Pension or Annuity Payments) * Divorce Decree dated 31 January 2014 * Divorce Decree Appeal dated 20 June 2014 * Transcript of court proceedings * Army Review Boards Agency (Case Management Division ) Request for additional information letter dated 19 Oct 2018 * Spousal concurrence election letter * Retiree account statement * Self-authored letter dated 6 November 2018 FACTS: 1. The applicant request that her former spouse’s SBP beneficiary election be changed to reflect her, Ms. (formerly Mrs. ) as the beneficiary as ordered in the divorce decree dated 7 May 2014. 2. The applicant provides: a. Letter dated 9 Oct 2012 from Retirement Services advising Ms. of her spouse’s election to decline SBP coverage effective 28 February 2013. The applicant was given until 28 February 2013 to complete and return the Spouse SBP Concurrence statement. b. Spousal concurrence election dated 5 December 2012 non-concurring with her then spouse’s election to decline SBP coverage. c. Retiree Account statements dated 7 March 2013 and 21 March 2013 indicating an SBP deduction for spouse and children of $134.64 from FSM’s retirement pay for the month of April 2013. Ms. (formerly known/referred to as ) is shown as the beneficiary as the then spouse. d. Divorce decree filed with the El Paso County District Court in Colorado. The decree of dissolution date is 31 January 2014. Paragraph 7b (Military Retirement) states: * R.B. is to maintain the SBP coverage which will be paid off top prior to division so that both parties are sharing in the cost of SBP * R.B.’s current gross military retirement pay is $2,090 per month. The SBP cost is $136.66 per month. The disposable retired pay is therefore $1,953.34 per month of disposable pay e. Divorce decree appeal dated 20 June 2014 affirming the judgement of the divorce decree. f. DFAS letter dated 9 February 2015 declining payment of property division due to her divorce decree currently being appealed. The Uniformed Services Former Spouses Protection Act indicates that payment may only be paid for division of property when there is a final court order of divorce; dissolution or annulment, or legal separation; when a divorce has been appealed it is not a final order. g. Direct Deposit authorization form dated 4 November 2015 indicating the account information for the division of property payment deposit. h. W4 dated 4 November 2015 indicating number of dependents and tax election information. i. Denial of payment letter from DFAS dated 1 December 2015 citing that the final court order of divorce must be certified by the clerk of court and is not final until 10 December 2015. The applicant was directed to submit a claim after 10 December 2015. j. Transcript of court proceedings dated 23 August 2016 wherein contested the ambiguity associated with the amount of retired military pay to be obligated to Ms. . The judge discussed the intent of the language of the divorce decree was to continue SBP coverage for the applicant following the divorce. k. Self authored letter (unknown date) indicating additional requested information had been faxed to the agency. Ms. also indicated that she would like an extension, if possible, to gather additional information as she and her former spouse were currently awaiting a court ruling on a separate matter. She further stated that her former spouse was reluctant to complete any forms voluntarily. l. Self authored letter dated 6 November 2018 from the applicant advising this agency that she had faxed the requested information on 31 December 2018. She further stated that she would also mail this information as well. m. See applicable laws below. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. A preponderance of the evidence supports granting the request and will ensure that the applicant is afforded the SBP coverage awarded to her in the divorce decree, which she attempted to deem. 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 deemed an election pursuant to the court-approved agreement within one year of the final divorce decree – within one year of 10 December 2015. 10/15/2019 X 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code (USC), section 1448(b)(3) incorporates the provisions of the Uniformed Services Former Spouse Protection Act 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 one 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. 3. Title 10, USC, 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. 4. Title 10, USC, 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//