IN THE CASE OF:  

		BOARD DATE:  19 January 2021

		DOCKET NUMBER:  AR20180012997


APPLICANT REQUESTS:  as the former spouse of the former service member (FSM):

*	correction of the record to show her as the Survivor Benefit Plan (SBP) annuitant 
in accordance with their divorce decree 
*	a personal hearing before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Defense Finance and Accounting Services (DFAS) correspondence
*	DD Form 2656 (Data for Payment of Retired Personnel)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Divorce Decree
*	Domestic Relations Order
*	Certificate of Death 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 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: 

   a.	She and the FSM married on May.  On July, the FSM retired from the US Army 
and completed his DD Form 2656, wherein he elected her as beneficiary of his SBP.  
On 6 November, they divorced.  Their divorce decree orders she be listed as the 
beneficiary.  
   
   b.	In October of 2010, her attorney’s paralegal asked her to complete a                          
DD Form 2656-10, which was completed and filed.  She contacted DFAS and her                 
DD Form 2656-10 was confirmed as received and filed within a year of her divorce date.  
The FSM was a decorated military Soldier; she stood by as his military spouse during 
his tenure.  Her former spouse paid into the SBP program to insure annuity coverage for 
her in the event he should pass away.  It is a travesty of justice that the FSM paid SBP 
payments for 40 years and DFAS refuses to process her claim.  DFAS must have lost 
DD Form 2656-10 from October 2010 to about April of 2018, when it was discovered to 
not be in their file.

3.  A review of the FSM’s military service records shows the following: 

   a.	On 5 August 1968, the FSM was inducted in the Army of the United States, for 
an active duty commitment of 3 years.
   
   b.	On 1 May 1971, the FSM was honorably released from active duty in the 
rank/grade of Sergeant/E-5, and was transferred to the US Army Reserve (USAR) 
Control Group (Reinforcement). 
   
   c.	On 10 September 1973, he enlisted in the USAR for a period of 6 years for 
enrollment into Reserve Officer Training Corps (ROTC).  As a result of completion of 
ROTC, he was appointed as an Army Reserve commissioned officer in the grade of 
Second Lieutenant/ O-1 on 26 July 1974.
   
   d.	On 21 April 1975, Orders Number show the FSM was ordered to active duty, as 
an obligated officer for 2 years.  On 2 March 1977, he requested to be retained on 
active duty. 
   
   e.	On 30 June 2003, the FSM was retired from active duty and placed on the 
retirement list. 

4.  The FSM's service records are void of any documentation regarding SBP elections.

5.  The applicant provides:

   a.	A letter from DFAS in response to a congressional inquiry on the applicant’s 
behalf wherein the Deputy Director of Operations states in pertinent part, a former 
spouse SBP Account could not be established for the applicant, and explained the 
following: 

      (1)  Public Law 98-94 amended the SBP to give retirees the option to change 
their spouse coverage to former-spouse coverage within one year of divorce.  Public 
Law 98-525 further amended the SBP by giving the former spouse of a retiree the 
option to request that a former spouse election be deemed to have been made by the 
retiree. The two requirements for a deemed election to be valid are as follows? 

      (2)  The first requirement is that the divorce decree must specifically indicate the 
former spouse is entitled to coverage under the SBP.  Their divorce decree stipulates 
that the applicant be named as a former spouse beneficiary of the FSM’s SBP account.
      
      (3) The second requirement is that the request for a deemed former-spouse 
election, or a request by the retiree to name a former spouse as an SBP beneficiary 
must be made within one year of the divorce.  Within the one-year window following the 
divorce, the FSM did not elect former-spouse coverage, and the applicant did not deem 
former-spouse coverage.  There is no record of communication from the former spouse 
on this matter before 5 April 2018.
      
      (4)  The FSM was obligated to pay to his former spouse a portion of his 
disposable military retired pay each month under the Uniformed Services Former 
Spouse Protection Act (USFSPA).  The FSM paid SBP premiums from his military 
retired pay each month until his death, and his USFSPA payment was reduced each 
month by an amount equal to a portion of the SBP premium that was determined to be 
the former spouse’s share of the premium.
      
      (5)  However, because the former-spouse SBP was neither deemed nor 
assigned within one year after the divorce, no premiums were due after that time, and 
any premiums paid should be refunded.

      (6)  Title 31, U.S. Code, Section 3702, commonly referred to as the Statute of 
limitations or the Barring Act, states that any claim against the government must made 
within six years from the date that a claim arises.  In this case, it is the date of the FSM's 
death.  That is why only premiums since 19 February 2012 have been refunded.

      (7) On 4 April 2018, DFAS mailed a check to the former spouse in the amount of 
$12,691.60, representing her portion of the refund for the erroneously withheld SBP 
premiums.

   b.	A DD Form 2656 dated 27 June 2003, wherein the FSM elected SBP coverage 
for spouse and children. 
   
   c.	DD Form 214 for the FSM which shows on 30 June 2003 the FSM was honorably 
retired.  He was credited with serving 28 years and 28 days of net active service during 
that period; 2 years, 8 months, and 27 days of prior active service; and 3 years, 2 
months, and 15 days of prior inactive service. 

   d.	A copy of the divorce decree dated on 6 November 2009 for the FSM and the 
applicant.  In connection with this decree, a Domestic Relations Order (DRO) details the 
FSM is ordered to elect to designate the former spouse as a former spouse beneficiary 
of the SBP.  It further stated that if the FSM fails to file the documents required to 
designate the former spouse coverage, the former spouse is directed to apply to be 
deemed as a former spouse beneficiary by contacting DFAS within one year of the date 
the DRO is signed. 

e.	A Certificate of Death, which shows the FSM died on 19 February 2018 and his 
marital status at the time of his death was "divorced."

6.  Army Regulation (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. 

7.  See applicable references below.	


BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found relief 
is warranted. The Board further found the available evidence sufficient to fully and fairly 
consider this case without a personal appearance by the applicant. 

2.  The Board noted the applicant was awarded SBP in her divorce settlement, but it 
appears her request for a deemed election for former spouse coverage was not 
received within a year of the divorce as required by law.  Based on a preponderance of 
evidence, the Board determined the record should be corrected to show the applicant 
submitted a timely request for a deemed election for former spouse SBP coverage and 
the request was approved.  


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 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 a timely request 
for a deemed election for former spouse Survivor Benefit Plan coverage was submitted 
and approved.  The applicant should be paid any monies she is due as a result of this 
correction.

		  
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, section 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.  Army Regulation (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 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.

3.  Title 10, U.S. Code (USC): 

   a.	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.
   
   b.	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.
   
   c.	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//
ABCMR Record of Proceedings (cont)	 AR20180012997

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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