IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180015966 APPLICANT REQUESTS: reinstatement of her Survivor Benefit Plan (SPB), as a former spouse SBP beneficiary, as ordered and awarded in her divorce and Qualified Domestic Relations Order (QDRO). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * List of Documents for Appeal * personal statement * divorce decree * Law Data Incorporated (INC) QDRO Intake Form * former spouse’s, a retired service member (RSM), DD Form 214 (Certificate of Release or Discharge from Active Duty) and Retiree Account Statements * Consent Order on Equitable Distribution * DRO * Defense Finance and Accounting Service (DFAS) letter and DRO * certified mail receipt * IRS Form 1095-B (Health Coverage) * DD Form 2293 (Application for Former Spouse Payments from Retired Pay) * DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) * Direct Deposit slip * five letters to and from DFAS, with certified mail receipt FACTS: 1. The applicant states: a. She and the RSM were divorced on 12 August 2016. On September 13, 2016, the Law Data was paid $500.00 to prepare a QDRO. On 22 November 2016, the QDRO was filed with the court. A true copy was sent to DFAS on 28 November 2016, 3 months after her divorce on 12 August 2016. No one at DFAS ever contacted her or her attorney concerning the status of her QDRO after receiving said order and that the DD Form 2656-10 (SBP/Reserve Components (RC) SBP Request for Deemed Election) was missing. She was ordered to go through her attorney and Law Data Inc. and prepare files. b. In January 2018, the RSM received an IRS Form 1095-B. It appeared she and her son were still on Tricare as if they were still married. Upon receiving the IRS Form 1095-B, she contacted DFAS and discovered the original QDRO sent in November 2016 was placed in a "dead file." The very nice woman she spoke with emailed her supplemental forms. She sent all the additional paperwork to DFAS, Garnishment Department, on 13 February 2018. She discovered DFAS did not receive the first faxed documents, so she resent the same documents on 23 March 2018, which was received this time. c. She received three letters from DFAS after sending the faxed documents. The letters pertained to the status of her direct deposit of her portion of the pension and the SBP. She promptly gathered the necessary forms and mailed them via certified mail. DFAS received these documents on 20 April 2018. At this point, her direct deposit was established. Unfortunately, her SBP annuity is still being denied. She did not understand why, so she approached her attorney for advice. On 8 May 2018, he drafted a letter to DFAS on her behalf reiterating the facts known to him and her. DFAS received his letter on 15 May 2018. There has been no response in regards to his most recent letter. d. On 1 June 2018, she received her first direct deposit of her portion of the pension. On 11 July 2018, a staff member of the DFAS Garnishment Division stated the DD Form 2656-1 was missing in the original packet sent in November 2016. This is when she finally realized and understood what held up her SBP. She was then referred to the Army Board for Correction of Military Records’ (ABCMR) appeal process. e. She would respectfully inquire why no one contacted her or her attorney in regards to the missing DD Form 2656-1 when DFAS received the QDRO in November 2016? Why were her documents placed in a "dead file" and allowed to lapse past the time limit? In the QDRO, page 2, under Retirement Benefits, it directs disbursement of pension, SBP, and percentages to each party. On page 3, it states “my former spouse is supposed to maintain the SBP on my behalf.” He allowed the SBP to lapse and failed to notify DFAS or her the SBP had lapsed. f. In conclusion, she respectfully requests the Board reinstate the SBP. Through no fault of her own, she is being denied SBP that was legally awarded to her in a court of law. She agreed to pay for the SBP through her portion of the pension awarded to her. 2. The applicant provided the following: a. Divorce decree showing she and the RSM were divorced on 12 August 2016. The decree did not stipulate award of former spouse SBP coverage to the applicant. b. Law Data Inc QDRO Intake Form (self-explanatory). c. RSM’s DD From 214 and Retiree Account Statement, dated 21 January 2016, showing "Spouse only" SBP cost of 175.64 were deducted from his retired pay. d. Consent Order on Equitable Distribution, dated 11 August 2016, which stated she would have the following, free from claim or right of husband: * all of her checking, savings, money market, 401(k), retirement and pension plus 22% of husband's military pension and retirement, plus COLA and survivor premium by way of military pension division order * wife shall pay for the survivor premium out of her share of the pension * wife shall be responsible for the costs of the Military Pension Order * once the cost of the Wife's survivor benefit premium is subtracted from Wife’s share of the pension/retirement check from DFAS, her share is 15.5% e. DRO, dated 22 November 2016, directing the U.S. Amy Reserve (USAR) Retired Pay Operations to pay her 15.5% per month from the disposable retirement under which the RSM was currently receiving. f. Letter, dated 22 November 2016, wherein DFAS was provided a true copy of the DRO. g. 2017 IRS Form 1095-B, listing her and RSM as covered individuals. h. DD Form 2293, she completed and signed on 9 February 2018, requesting direct payment from the RSM’s retired pay. i. DD Form 2656-1, she completed and signed 13 February 2018. She indicated on the form she elected for a change to her SBP coverage to “Former Spouse.” j. Two letters, dated 4 April 2018, wherein DFAS advised of the following: (1) Receipt of her application for payment of a portion of the retired/retainer pay of the RSM. Prior to payment, Regulations require DFAS notify the member of her application and that the member be given 30 days to provide information regarding the status of the court order. If the member did not provide an order which superseded the order she submitted, payments should tentatively commence in May 2018, with the first payment issued on 1 June 2018. (2) Receipt of her SBP request for Deemed Election and her request could not be approved for the following reasons: * she needed to submit the DD Form 2656-10 and a copy of the initial Judgment of Absolute Divorce which had been filed with the Clerk of Court; the form must be submitted within 1 year of the date the court entered the order requiring the election of former spouse SBP coverage * the 1 year time frame for deemed elected had passed; therefore, they were unable to honor a DD Form 2656-10 since the date of the deemed election would be more than 1 year after the court order was filed k. Letter, dated 11 April 2018, wherein she provided DFAS with appropriate paperwork to facilitate the direct deposit of her alimony and to rectify the erroneous fact her SBP had lapsed. l. Letter, dated 2 May 2018, wherein DFAS advised the following: * her direct deposit information had been received and processed; the payments she was awarded in the DRO that was filed on 22 November 2016 in the amount of 15.5% of the member’s monthly military disposable retired pay was for Community Property payments as a division of marital property * the DD Form 2656-1 she submitted, as noted in their letter, dated 4 April 2018, was a form that was processed through the Retired Pay office and the form was forwarded to that office for review * if she would like to follow up on the status of this form, you can reach the Retired Pay office directly at phone number 800-321-1080. * Additionally, please note their Center was not served with any documentation until 27 March 2018, which was the date they received the DD Form 2293 and pertinent court order and that was also the date they received the DD Form 2656-1, which was forward to the Retired Pay office for review as that particular form was not processed by Garnishment Operations * There was no information on file with their Center regarding any documentation served on Garnishment Operations prior to 27 March 2018 m. Letter, dated 8 May 2018, wherein her attorney advised DFAS that on 22 November 2016, his paralegal sent a certified true copy of the DRP prepared by Law Data Inc. to DFAS. No one ever returned their 22 November 2016 mailing nor informed them it needed to be sent to a different address. His client informed him that she was still not getting her funds from DFAS and was told her DRO was in the "dead file." She had been trying to straighten out this matter for 1 1/2 years to no avail and recently contacted DFAS about this matter. Please advised what needed to be done to resolve that issue and get his client’s checks coming to her and the SBP reserved. 3. Review of the RSM’s service records show: a. He was born on XX July 1963. b. He enlisted in the North Carolina Army National Guard (NCARNG) on 6 February 1981. He entered active duty on 12 January 1993. c. He and the applicant were married on 19 February 2000. d. On 9 April 2001, he was issued a 20-Year Letter. This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application. This letter also provided him an SBP checklist. e. On 12 July 2001, he completed and signed a DD Form 1883 (SBP Election Certificate). He indicated on the form her was married to the applicant, had two dependent children, and elected “Spouse and Children” SBP coverage, Option C (Immediate Coverage), based on the full amount. f. On 12 July 2001, he completed and signed a Reserve Component (RC) Supplement SBP Election Certificate. He indicated on the form his declination of the RCSBP. g. He reenlisted in the NCARNG on 26 November 2001. h. He was honorably released from active duty on 30 September 2003. He again entered active duty on 11 February 2009. i. On 23 November 2011, he completed and signed a DD Form 2656 (Data for Payment of Retired Personnel). He indicated on the form he was married to the applicant, had one dependent child (step son), and elected “Spouse and Children” SBP coverage. j. He was honorably retired on 31 December 2011. His DD Form 214 shows he completed 20 years, 2 months, and 18 days of net active service. k. He and the applicant were divorced on 12 August 2016. l. On 1 December 2016, DFAS advised the applicant that they were unable to process her SBP request because the complete copy of the final divorce decree with judge’s signature and date of divorce was missing. m. An SBP memorandum, dated 4 April 2018, requested DFAS suspense her SBP Deemed Election Package because it was incomplete. 4. 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. 5. Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. 6. By law (Title 10, U.S. Code, section 1448), SBP elections are made by category, not by name. a. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. b. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed the court-order on equitable distribution, attached to the divorce decree, should have been followed, and the RSM was required to elect former spouse SBP coverage within a year of their divorce. The Board agreed the record should be corrected to show the applicant deemed an election and it was approved in a timely manner to be in accordance with public law. 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 she properly deemed an election as former spouse to Survivor Benefit Plan (SBP) on 13 August 2016, and her election was received and processed in a timely manner by the appropriate DFAS office. 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. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. Additionally, 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. 3. Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA 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 1 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. 4. Title 10, U. S. 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 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015966 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1