ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180014883 APPLICANT REQUESTS: Reconsideration of his former spouse’s previous request to add her as the beneficiary of his Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-written letter * DD Form 1883 * Judgement and Decree of Dissolution of Marriage * Deemed Election letter from former spouse * letter from former spouse to Defense Finance and Accounting Service (DFAS) * letter from legal assistance on behalf of former spouse * DFAS letter, dated 20 June 2018 * Retiree Account Statements for 12 April 2018, 14 June 2018, 2 July 2018, and 20 July 2018 * letter from applicant to DFAS * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) * DFAS letter, dated 12 September 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050008034 on 18 April 2006. 2. The applicant states: * he promised his former spouse she would be the beneficiary [of his SBP benefits] when they divorced in 1998 * his former spouse submitted a deemed election letter in June 1998 * he remarried, and upon retiring, he made a terrible mistake and named his new wife as the beneficiary, but she is now deceased 3. A review of the applicant’s service records show the following on: * 28 April 1966 – enlisted in the Army National Guard * 27 April 1972 – discharged * 5 January 1977 – reenlisted in the Army National Guard * 1 April 1991 – received Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), which informed him an election for SBP must be made on a DD Form 1883 (SBP Election Certificate) dated within 90 days of receipt * 31 July 2004 – was honorably retired from the Missouri Army National Guard (MOARNG), National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 33 years, 6 months, and 16 days of service 4. The applicant provides: * self-written letter wherein he states, in pertinent part: * that his former spouse made numerous attempts since he retired in 2004 to ensure she remained the beneficiary to his SBP but was denied by DFAS because they could not locate her letter deeming her election as former spouse * when his second wife passed away in 2017, he decided to get this corrected, but DFAS would not correct his SBP election, although he believes his election in 1998 to be valid * their income was figured during the divorce to Ms. X_X_, which is why she settled for 25% of his retirement, but if her payments stop, she will have a low income * DD Form 1883 (SBP Election Certificate) executed on 7 June 1991 which shows Ms. X_X_ is named as his spouse and wherein the applicant elected spouse only coverage with Option C – Immediate Coverage * Divorce Decree which shows he and his spouse were divorced on 29 April 1998 and entered into a Property Settlement Agreement which states he was ordered to maintain and pay the premiums of the SBP guaranteeing the former wife to be the beneficiary and provide her with proof of the policy and paid premiums yearly * “To whom It May Concern” letter from Ms. X_X_ dated 1 June 1998 wherein she deemed her election to SBP as a former spouse * letter from former spouse to DFAS dated 24 September 2004, where she is requesting to deem her election to his SBP as beneficiary, per the divorce decree * certified letter from legal assistance attorney on behalf of the former spouse to DFAS on 26 January 2018 * DFAS letter notifying the applicant on 20 June 2018 that their records reflect his retired pay account shows former spouse SBP coverage for Ms. X_X_ * Retiree Account Statements which show deductions from his retired pay for “former spouse” coverage and with Ms. X_X_’s date of birth * notarized letter from applicant to Director of Operation, DFAS, dated 29 August 2018 * notarized DD Form 2656-1 (SBP Election statement for Former Spouse Coverage) which shows the following in: * item 1 (Due to Divorce, change my SBP Coverage To) – ”Former Spouse” * item 2 (Are You Currently Married” – “No” is marked with an X * section III – signed by the applicant and his former spouse, Ms.X_X_ * DFAS letter which notified him that his attempt to deem an election of SBP former spouse coverage cannot be processed because his application was received more than one year after the receipt of the court order 5. Orders 135-289, issued by Headquarters, MOARNG, dated 14 May 2004, assigned the applicant to the transition point for retirement processing on 29 June 2004. DD Form 2656 (Data for Payment of Retirement Personnel) signed on 29 June 2004, shows the following: * on 26 December 2002 – the applicant remarried * in item 26 (Beneficiary Category(ies), he elects spouse only coverage for Ms. X_X_ * in item 30 (SBP Spouse Concurrence-Spouse), his spouse signs and concurs with the election to name her as beneficiary 6. On 24 May 2005, the applicant’s former spouse petitioned the Board to correct his SBP election to reflect he changed his coverage to former spouse coverage. On 18 April 2006, the Board denied his former spouse’s request. 7. The applicant’s service records are void of, and the applicant did not provide, a death certificate for his spouse. The analyst assigned made several attempts to request this document by email and telephone, but the applicant did not respond. However, the spouse’s obituary containing the necessary biographical information to identify her as the deceased spouse of the applicant was located online. 8. Please see applicable SBP laws under REFERENCES below. 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, his divorce agreement and SPB election, his remarriage and passing of his spouse, his DFAS records showing SBP payments and the statement of his former spouse regarding her deemed election. Based on a preponderance of evidence, the Board determined that the applicant intended to provide SBP for his former spouse and that a correction was appropriate in the interest of justice. 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 show: - to show that the applicant’s former spouse deemed a former spouse SBP election within one year of divorce – within one year of 29 April 1998, and, - that her election was accepted and processed by DFAS upon receipt. 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. 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 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. Three options were available: • option A - elect to decline enrollment and choose at age 60 whether to start SBP participation • option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday • option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60 3. 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 choose. 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. 4. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. 5. Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Non-regular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted Soldiers and former Reserve components Soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. It clearly states that members who received their 20-year letter prior to January 1, 2001, such as in this case, have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, the member may subsequently elect coverage under the SBP with his or her application for retired pay upon reaching age 60. ABCMR Record of Proceedings (cont) AR20180014883 6