ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180013690 APPLICANT REQUESTS: The applicant the former spouse of the Former Service Member (FSM) requests to be deemed the FSM’s Survivor Benefit Plan (SBP) annuitant. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Marriage Certificate, dated 16 March 1962 • Orders Number P-06-303010, dated 11 June 1997 • Separation Orders and Divorce decree, dated 11 April 2002 • FSM letter to Defense Finance and Accounting Service (DFAS), dated 26 April 2005 • Death Certificate, dated 6 July 2017 • DFAS letter to the applicant, dated 5 October 2017 • DFAS letter, dated 24 April 2018 • Counsel letter to Defense Office of Hearing and Appeals (DOHA), dated 16 May 2018 • DOHA appeal decision, dated 25 October 2018 • DOHA appeal letter 35-18 • Applicant letter appeal to DOHA, dated 15 November 2018 • Congressional assistance request, dated 19 November 2018 • email authored by Ms. C-, dated 16 April 2019 FACTS: 1. The applicant states through counsel, the FSM and the applicant negotiated the continuation of retirement benefits as part of their divorce, property settlement, and alimony benefits to be provided after the finalization of their divorce. The family court judge ordered in the final divorce decree that the SBP benefits continue to be provided to the applicant. This has been previously provided to DFAS. A copy of said divorce decree is attached. They assert that providing DFAS a copy of the divorce decree is tantamount to a timely election. 2. A review of the FSM’s available service record shows the following on: • 14 November 1955 – the applicant’s record is void of a DA Form 71 (Oath of Office Military Personnel), however, Permanent Orders Number 105-8 indicate his period of service from 14 November 1955-1 August 1995 as a commissioned officer in the South Carolina Army National Guard • 16 March 1962 – the FSM married Ms. H­ • 11 September 1995 – Orders Number 175-34, issued by the Office of the Adjutant General, honorably separated the FSM from the ARNG and transferred him to the Retired Reserve • the applicant’s record if void of a DD Form 1883 (SBP Election Certificate) or a DD Form 2656 (Data for Payment of Retired Personnel) indicating a Reserve Component SBP (RCSBP) or an SBP beneficiary category election 3. The applicant provides through counsel: a. Orders Number P-06-303010, issued by the U.S. Army Reserve Personnel Center, placed the FSM on the Retired list effective 21 November 1997 b. Separation order wherein section 6 of the agreement it states, “Also, at the death of the husband the wife shall also receive 55% of the husband’s National Guard Federal Retirement,” and it would be incorporated into the final decree of divorce. Divorce decree confirming the applicant’s divorce from the FSM. c. Letter authored by the FSM wherein he informs DFAS he was divorced from the applicant on 25 November 2002, and the divorce decree was attached, and the applicant had remarried. d. Death certificate showing the FSM died on 3 July 2017 and the FSM’s son was the informant. e. Letter authored by DFAS wherein the applicant was informed the FSM had made an SBP election and charges were being deducted from his retired pay as required by his original election at the time of retirement, but no claim had been filed. The applicant was informed to provide their divorce decree. f. Letter authored by DFAS wherein they were responding to the applicant’s appeal regarding denial of her claim for the FSM’s SBP. She had the right to file a rebuttal and the rebuttal must be submitted within 30 days, and she also had the right to request a 30 day extension. g. Letter authored by counsel wherein counsel was rebutting the DFAS decision to deny the applicant’s SBP claim on the basis of an election not being received within one year of the applicant’s and FSM’s divorce. Counsel argued the fact that since 1981 and the divorce in 2002, SBP payments were made, and consequently the FSM must have made the election. The Government was unable to locate his election dated 22 April 1981, they asserted the same was true for any required elections the FSM may have made. h. DOHA appeal decision that states in pertinent part, the applicant was informed the record showed the FSM elected RCSBP coverage for the applicant on 22 April 1981. RCSBP premiums were collected from the FSM through deductions from his retired pay. Their agreement, dated 1 March 2002, had the provision in section 6 (Retirement Plan) “at the death of the husband the wife shall also receive 55% of the husband’s National Guard Federal Retirement and upon the Wife reaching the age of 62 the Wife would receive 35% of the Husband’s National Guard Federal Retirement.” This provision awarded the applicant the SBP former spouse coverage by describing the payment without actually identifying it by name. The applicant remarried on 5 April 2005. By letter, dated 26 April 2005, the FSM informed DFAS of the divorce and remarriage. By letter to the applicant, dated 8 August 2017, DFAS-CL denied the applicant’s claim on the grounds that her SBP coverage was ended by her divorce and that SBP former spouse coverage had not been established by a timely election or deemed election. i. DOHA administrative report providing a procedural and factual history of the FSM’s and applicant’s marriage, divorce, report of death and the applicant’s claim for the SBP as a former spouse. j. Letter authored by the applicant wherein she submits a request for reconsideration of the appeals decision related to the SBP of the FSM. k. Congressional assistance request from the applicant to the Honorable G-based on SBP deductions being continued from the FSM’s pay after their divorce and no elections being changed. l. Email correspondence from Ms. C- to a Department of the Army Office of Chief of Legislative Liaison official inquiring about the status of the applicant’s inquiry. 4. See applicable SBP laws below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the Soldier’s service, his transfer to the retired reserve and SBP election, his subsequent divorce from the applicant, the conditions of the divorce decree and the DOHA review. The Board found the payments for SBP and the applicant’s statement compelling and determined, by a preponderance of evidence, that applicant is entitled to the SBP annuity. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the FSM elected former spouse SBP coverage within one year of the final divorce decree – within one year of 3 December 2002, and his election was received and processed in a timely manner by the appropriate DFAS office. The applicant will receive the SBP annuity as a former spouse as long as she otherwise maintains eligibility. Any previously unpaid SBP premiums will be deducted from the annuity. 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, United States 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. 2. 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. 3. 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.