ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180014152 APPLICANT REQUESTS: add former spouse to the Survivors Benefits Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Uniformed Services Former Spouses' Protection Act Bulletin * Application for Former Spouse Payments from Retired Pay * letter to former spouse regarding retirement * SBP Attendance Statement * note from the doctor of the former service member (FSM) * Power of Attorney * Data for Payment of Retired Army Personnel * SBP Fact Sheet * Uniformed Services Former Spouses' Protection Act * Certificate of Death for the FSM * Retiree Account Statement * FSM letter to Defense Finance and Accounting Service (DFAS) * letter from former spouse to DFAS * marriage certificate to FSM's second wife * completed Application for Former Spouse Payment from Retired Pay * divorce decree with second wife * marriage certificate to FSM's first wife * divorce decree from first wife FACTS: 1. The applicant, the daughter of the FSM, states: * the FSM requested his first wife be reinstated as the beneficiary for his SBP * they were under the understanding she could not be removed as the beneficiary * after they reviewed the case it was discovered she is not the beneficiary * he wished for the mother of his children to be taken care of even after his death * they were not informed they needed to change/update anything after their divorce 2. The FSM and his first wife were married on 18 February 1969. He was honorably retired from the Army on 31 July 1990. At the time of his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) listing his first wife and children to receive the SBP at the full amount. 3. The FSM and his first wife were divorced on 27 December 1999. They did not know of the requirement to make a change in his SBP election within a year of their divorce. The FSM was remarried on 15 October 2006 and were divorced on 10 February 2010. The FSM did not make any changes to his SBP upon his remarriage. 4. The applicant submitted the application for correction on behalf of her father via a Power of Attorney on 9 October 2018. The FSM passed away the next day on 10 October 2018. 5. The applicant provides a note from her father's doctor dated 27 March 2018 stating the FSM is under his medical care for advanced dementia and requires supervision 24 hours a day, 7 days a week. 6. She also provides a letter signed by the FSM to DFAS on 11 June 2018 which states he learned he had been paying for SBP since 1991 to ensure his first wife received the benefits in case of his death; however, she was not listed as his beneficiary. He'd been advised she was ineligible to receive the benefits due to not notifying DFAS within a year of their divorce of the change in status. He found that unfair because they were not advised of this provision at the time of their SBP briefing. He asked for his first wife to be his beneficiary and retained a packet of the briefing he received. 7. The applicant provides a letter from the FSM's first wife to DFAS. It states, she is appealing the decision made in regards to the SBP. It was her former spouse's understanding a form should have been submitted upon their divorce but according the briefing they received at the time of his retirement the plan would never end unless she ended it. They did not discovered the first wife was no longer covered until their daughter looked at his income statements on line. The FSM contacted DFAS several times to try to rectify the situation. He was told he could submit a letter to DFAS stating he did not know of the requirement to make the change within a year of their divorce. The FSM sent the letter but did not receive a response. He contacted DFAS again and was told to contact the Army Board for Correction of Military Records. 8. Title 10, U. S. Code, section 1450(b)(3) 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 FSM's records are void of evidence he changed his SBP election to former spouse within a year after divorce. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the original SBP election, the divorce document, the continued payment of SBP premiums and the Soldier’s letter to DFAS. The Board found by a preponderance of evidence that the FSM’s intent was for his former spouse to receive the SBP annuity and determined that a records correction was warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 to reflect: - the FSM voluntarily elected former spouse SBP coverage within one year of the divorce from his first spouse – within one year of 27 December 1999; - the FSM’s application was received and processed by the appropriate officials, and; - the FSM’s former spouse is eligible to receive the SBP annuity. X CHAIRPERSON 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. REFERENCE: Title 10, U. S. Code, section 1448(b)(3) & (5) permit 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.