ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20180016627 APPLICANT REQUESTS: The applicant, the former spouse of the Former Service Member (FSM), requests to be awarded the Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate, dated 12 November 1988 * Social security card * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 17 December 2003 * Divorce decree, dated 20 December 2010 * Death Certificate, dated 31 May 2018 * DD Form 2656-7 (Verification for Survivor Annuity), dated 5 September 2018 * DA Form 5016 (Chronological Statement of Retirement points), dated 10 September 2018 * Standard Form (SF) 1199 (Direct Deposit Sign-Up Form), dated 5 September 2018 * Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 5 September 2018 FACTS: 1. The applicant states in effect, the FSM should have completed the court ordered directive to “elect and maintain a survivor benefit annuity for wife at the highest level available” which would require a completed DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) be maintained in his military records on behalf of the former spouse. If this would have been completed she would receive SBP benefits. 2. A review of the FSM’s service records show the following on: * 30 September 1992 – having had prior Regular Army enlisted service, the FSM enlisted in the U.S. Army Reserve * 17 December 2003 – the U.S. Army Human Resources Command issued the FSM a Memorandum of Eligibility for Retired Pay at Age 60 and he was informed of his Reserve Component SBP (RCSBP) options under Public Law 95-397 * the FSM’s record is void of a DD Form 2656-5 (RCSBP Election Certificate) indicating he elected RCSBP coverage at the time * the FSM was 57 years of age at death 3. The applicant provides: * Marriage Certificate showing she and the FSM were married on 12 November 1988 * Applicant’s social security card * Divorce decree wherein section 2 (Military Benefits), item Y states the FSM will elect and maintain election of the survivor benefit annuity for the benefit of the wife’s receipt of husband’s military retired pay at the highest level available * Death Certificate showing the FSM died on 31 May 2018 and the informant was his son * DD Form 2656-7 showing a request for the RCSBP former spouse based on the FSM’s death * DA 5016 showing the FSM had 21 years, 4 months, and 17 days of qualifying service for retirement * SF 1199 showing a depositor account * Form W-4P for withholding for pension or annuity payments 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 discussed the Soldier’s service and retirement, the parameters of the divorce decree and the lack of evidence that the Soldier complied with the requirement to name his former spouse as his RCSBP beneficiary. The Board found by preponderance of evidence that the applicant should be entitled to SBP as a former spouse beneficiary. 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 by showing that the FSM submitted a DD 2656-1 SBP election statement for former spouse coverage pursuant to the court-approved agreement within one year of the final divorce decree – within one year of 20 December 2010 and that the election was accepted and process by appropriate officials. The applicant will be responsible for any premiums required for this election of coverage. 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, U.S. 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. ABCMR Record of Proceedings (cont) AR20180016627 0 3 1