ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20180013558 APPLICANT REQUESTS: to add the former spouse of the deceased former service member (FSM) to his Survivors Benefit Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * State of Texas Certificate of Death * Withholding Certificate for Pension or Annuity Payments * direct deposit form * letter from attorney regarding divorce * retiree account statements * Judgement Nunc Pro Tunc - Final Decree of Divorce * email to Congressman C FACTS: 1. The applicant, the former spouse of the FSM, states: * she is the beneficiary listed on the FSM's SBP annuity * the SBP was paid until the FSM's death on 4 October 2017 2. The FSM was honorably retired from the service on 31 January 2014. The applicant provided the FSM's retiree account statements. They show payment of the SBP and she is listed as the beneficiary for the SBP. 3. The FSM and applicant were divorced on 29 November 2016. The divorce decree did not address the SBP. The FSM passed away on 4 October 2017. 4. The applicant, through her attorney, sought a judgement Nunc Pro Tunc [changing back to an earlier date of an order, judgment or filing of a document] on 25 January 2018. Within that document, the judgment was for the applicant to receive the SBP. 5. The applicant's attorney wrote a letter to the Office of the General Counsel of Defense Finance and Accounting Service (DFAS) on 3 April 2018. It states: * an annuity is deemed community property if acquired during a marriage in the State of Texas * if a party to a divorce fails to disclose such property the property still exists * it becomes property owned jointly with right of survivorship * the FSM did not disclose the existence of the SBP annuity * the SBP could not have been considered by the Presiding Judge for division at the time of the divorce on 29 November 2016 * the Court did take into account the FSM's retirement pay, which was divided by the FSM and the applicant * the attorney was able to provide the FSM's retiree account statements from 25 July 2016 through 1 February 2017 * the deductions for SBP were taken prior to his death and the applicant was noted as the beneficiary * the applicant was not provided information to make a request in writing or to deem an election to her benefit * the Court has made an effort to include the SBP annuity by issuing its Judgment Nunc Pro Tunc to the final decree of divorce * the judgement is proper and is "boot-strapped" to the final divorce decree * the judgement does not violate constitutional rights of due process of law * the FSM did not disclose to the applicant or the Court the existence of the SBP annuity * it is not equitable to deny the benefits of SBP to the applicant 6. The applicant wrote a letter to Congressman C regarding her claim to DFAS. DFAS responded to the Congressman as follows: * the FSM retired on 1 February 2014 and elected SBP for his then spouse, the applicant * the FSM died on 4 October 2017, upon his death DFAS was notified he and the applicant were divorced on 29 November 2016 * as a result of the late notification, the FSM paid premiums for SBP until his death * a former spouse does not automatically become eligible for SBP upon divorce * the FSM could have elected for former spouse coverage * the voluntary election must be made before 1 year of the divorce * the FSM did not voluntarily elect former spouse for the SBP * the law allows the former spouse to deem an election for SBP * it must specifically be identified in the divorce decree that the former spouse is entitled to the SBP * the divorce decree dated 29 November 2016 did not indicate entitlement to the SBP * a second divorce decree dated 25 January 2018 shows the Court awarded SBP to the applicant * the court proceedings did not begin while the FSM was alive * DFAS was unable to accept the second divorce decree 7. The FSM's mother wrote a letter to DFAS stating the FSM was in the process of removing the applicant from his SBP at the time of his death. She included an unsigned DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate). 8. 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 chose. The divorce decree must specifically address the SBP and the former spouse has one year from the date of the divorce to deem her election. There is no evidence within the first divorce decree dated 29 November 2016 regarding the SBP or that the applicant deemed her election within one year. Absent an election for former spouse coverage either voluntary or court-ordered, a spouse’s eligibility to receive an annuity terminates upon divorce. 9. The Judgement Nunc Pro Tunc dated 25 January 2018 states the applicant is the recipient of the SBP upon the FSM's death. This document was completed after the FSM's death. The applicant requested the annuity from DFAS within a year of the date of the judgment. DFAS denied the applicant's request. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and the evidence in the records. The Board discussed the Soldier’s SBP election (Spouse only) at the time of retirement, the subsequent divorce and no evidence of a former spouse election within one year of the divorce. The Board noted that the initial divorce decree did not include language directing former spouse SBP coverage and that the subsequent court proceeding included such language was initiated after the Soldier’s death and per DoD financial management regulations would not be honored for SBP purposes. The Board determined, by preponderance of evidence, that there was no error or injustice in this case. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted.? 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. ADMINISTRATIVE NOTE(S): N/A 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. However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law. 2. 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 chose. 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. 3. DOD Financial Management Regulation (FMR) 7000.14-r, volume 7b, chapter 43, section 430504.C discusses deemed elections by former spouses. If the request to direct a former spouse SBP election via court order was initiated after the member’s death, the order will not be honored for SBP purposes. ABCMR Record of Proceedings (cont) AR20180013558 2