ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180015341 APPLICANT REQUESTS: The applicant, the Service Member’s (SM) former spouse, requests to be deemed as a former spouse Survivor Benefit Plan (SBP) beneficiary. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 2005 * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage), dated 5 September 2013 * Divorce Decree, dated 12 December 2013 * Defense Finance and Accounting Service (DFAS) letter, dated 20 February 2018 * Applicant letter to DFAS, dated March 2018 * DFAS letter, dated 10 April 2018 * Applicant letter to DFAS, dated 11 May 2018 * DFAS letter to the applicant, dated 4 June 2018 * Congressional assistance request and allied documents, dated 17 July 2018 FACTS: 1. The applicant states the former spouse SBP beneficiary should be in her name as agreed upon in the divorce. All paperwork was completed and sent as instructed on DD Form 2656-1 in December 2013. The paperwork was mailed the same month as the divorce was finalized. The mail was either lost by the post office or not properly entered into the DFAS system. She found the error in February 2018, by requesting a letter from DFAS to have with her updated estate planning. As the Board will see with her supporting documents, she has been trying to get it taken care of for quite some time now. If you go back to the first document she received from the DFAS office, it states she is the beneficiary on the account for SBP former spouse. And from the conversation she had with Mr. X-, DFAS. How could that have changed, after the letter was written to her? She feels she should not be penalized because, somehow the paperwork was either lost in the mail or not entered correctly or at all within the DFAS offices. 2. A review of the SM’s records show the following on: * 25 January 1990 – having had prior service as a warrant officer, the SM was appointed as a Reserve commissioned officer * 31 May 2005 – honorably retired from active duty, DD Form 214 shows he completed 22 years, 9 months, and 21 days of net active service with 7 years, 5 months, and 15 days of prior active service * 8 April 2019 – Case Management Division requested supporting finance documents from DFAS, DFAS provided the following documents: * DD Form 2656 (Data for Payment of Retired Personnel) showing the following: * section 5 (Designation of Beneficiaries for Unpaid Retired Pay) his then spouse Ms. X- X- (now Ms. X- X-) * section 8 (Dependency Information) they were married on 29 June 2000 * section 9 (SBP Election) he elected spouse only coverage * the SM, Ms. D- S- and a witness endorsed this form on 13 April 2005 * letter from the MacDill Air Force Base Retirement Services Officer explaining to the applicant the various levels of SBP coverage 3. The applicant provides: a. DD Form 2656-1 showing the SM requested to change the SBP coverage to former spouse due to divorce and a witness endorsed this form on 5 September 2013. b. Divorce decree wherein item 11 specifies the SM shall maintain former spouse coverage of the SBP plan in the maximum allowable amount and his former spouse would receive 100% of the SM’s SBP and the SM would execute any and all documents necessary to include a DD Form 2656-1. c. DFAS letter to the applicant stating in accordance with Title 10 USC, section 1448 (b)(2)(3) former spouse SBP coverage must be established within one year of the final divorce with: * a signed voluntary election from the retiree and the final copy of the divorce decree * if awarded former spouse SBP in the finalized divorce decree, a signed, deemed election from the former spouse * the former spouse must have been covered as a spouse by the retiree * because at least one of these requirements was not met, former spouse SBP coverage cannot be initiated d. Applicant’s letter to DFAS that states, on 20 February 2018, DFAS kindly wrote to her in answer to her telephone request for confirmation that their records properly reflected that she was shown to receive SBP in the event her former spouse predeceased her. The attached letter indicated in the first paragraph she was the SBP beneficiary but in the subsequent paragraphs may indicate this beneficiary designation did not occur after their divorce on 12 December 2013. She did not retain the completed documents she believed were timely submitted to DFAS, but her divorce attorney was able to furnish her copies of some of the pertinent documents, which she now enclosed (documents submitted with the case and summarized in the record pf proceedings). She could obtain a full certified copy of the judgment and marital agreement if DFAS required it. If the file was improperly handled by her or DFAS, what can be done for its rectification? e. DFAS response to the applicant that states, the letter was to inform her that her attempt to deem an election of SBP former spouse coverage could not be processed because her application to deem the election was received more than one year after the receipt of her court order. A spouse loses eligibility as a SBP spouse beneficiary upon divorce. There is no provision that makes former spouse coverage an automatic benefit. The only means by which the divorced spouse can become an SBP beneficiary is if former spouse coverage is elected by the service member or a deemed election is made by a former spouse on the basis of a court order. A court order by itself could not be used to institute coverage. An election can be deemed on the basis of a court order or court-approved agreement by the former spouse or the former spouse's attorney. The request must be received along with a DD Form 2656-10 (SBP Request for Deemed Election) within one year of the date of the original court order that awarded the coverage. f. Applicant’s letter response to DFAS that states, back in early February 2018, she phoned DFAS to get a confirmation letter of her SBP coverage. The coverage was court ordered and agreed upon by her former spouse. At that time she was completing her estate planning paperwork and wanted to have the letter in her files. She received the first letter from DFAS on 20 February 2018, after being told on the phone everything was fine and her name was listed as the beneficiary. She again phoned to get a confirmation she understood the letter, which was a bit vague. After speaking to a supervisor, she advised her to send a letter with the appropriate documents to DFAS, which was done in early March 2018. On 10 April 2018 a letter was written to her and she received the letter on 10 May 2018. She followed-up with a phone call to one of their customer care representatives yesterday. She advised her to send an appeal letter. She received the final documents from her divorce lawyer in mid-December. She assumed the lawyer sent the documents to the proper authorities within the military system. But, to be sure she went to complete the filing of other documents at the local county office and across the street was the post office, which she sent the completed DD Form 2656-1 to DFAS. Included were the proper documents requested by the instructions on DD Form 2565 [sic]. g. DFAS letter response to the applicant that states in pertinent part, the SBP coverage was never converted to former spouse coverage due to the SBP regulation requiring receipt of a valid deemed election within one year of a court order/divorce. When retired military pay received the divorce documentation on 10 March 2018, they removed the spouse coverage effective 13 December 2013, per the divorce document. Unfortunately, the receipt of this document was well outside of the regulated one year timeframe. Additionally, neither a DD Form 2656-1, nor a valid DD Form 2656-10 was received within the one year period after the divorce. h. Congressional assistance request containing a response from the Honorable Mr. C- C- informing the applicant about the response from DFAS and he did not have the final say in the determination of a federal agency. The DFAS response in summary says neither the SM nor the applicant submitted appropriate documents within one year period required by law. 4. Title 10, United States Code, 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. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. A preponderance of the evidence supports granting the request and will ensure that the applicant is afforded the SBP coverage awarded to her in the divorce decree, which she attempted to deem. 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 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 that the applicant deemed an election pursuant to the court-approved agreement within one year of the final divorce decree – within one year of 12 December 2013. 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: Title 10, United States Code, 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) AR20180015341 5 1