ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20190000684 APPLICANT REQUESTS: as the former spouse of servicemember, to be added as an annuitant of his Survivors Benefit Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * letter from applicant's counsel * Request for Deemed Election * Divorce Decree * two letters from Defense Finance and Accounting Service (DFAS) * letter from Army Retirement Services * self-authored letter to the Army Chief of Staff * letter from counsel to ex-husband's attorney * two DFAS letters to ex-husband * SBP Audit * two letters from counsel to DFAS * Affidavit * Court Order * Motion to Enforce * self-authored letter to the Board FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant, the former spouse of the servicemember, states she should be reinstated as the designee of her ex-husband's SBP. They were married for 27 years and all of his military career. She sent in all the paperwork and a copy of the divorce decree in 2008, within the one year time frame that was allowed. They claimed it was never received. She made multiple calls and appealed to the board and was still denied because they said they never received the paperwork in 2008. 3. The applicant's ex-husband submitted a DD Form 149 which contained the same documentation as provided by the applicant. In his application, the servicemember states: a. He requests a change at DFAS to indicate Former Spouse SBP for his ex-wife originating on 15 January 2008 based on the DD Form 2656-10 (SBP Request for Deemed Election) he submitted by his ex-wife in April 2009 and was not acted on by DFAS. b. He and his ex-wife were divorced on 4 June 2007. The divorce decree designated a split of his retired pay based on the Uniformed Services Former Spouse Protection Act. The divorce decree did not document a requirement for Former Spouse SBP. The lawyer retained by his ex-wife submitted a DD Form 2293 (Application for Former Spouse Payments from Retired Pay) and split his retired pay per their divorce decree. c. His ex-wife informed him in June 2017 that neither she nor her lawyer completed the appropriate paperwork after their divorce and DFAS was going to terminate her as an SBP beneficiary. DFAS denied her request for Former Spouse SBP in June 2017 because the paperwork was not filed within one year of the divorce and the divorce decree did not require former spouse SBP. He was not aware of an issue because DFAS continued to deduct SBP from his retirement pay from the date of their divorce. He received an email form his ex-wife informing him there was an issue with SBP and her lawyer recommended obtaining life insurance. He received a letter from DFAS after an audit, initiated at the time his ex-wife requested former spouse SBP, informing him DFAS was refunding money to his former spouse and he for payments from July of 2007 to October of 2017. d. A second request for former spouse SBP was submitted by his ex-wife's counsel on 5 September 2018 after a Court Order requiring the submission of a DD Form 2656- 1 (SBP Election Statement for Former Spouse) and if DFAS denied the request the order required him to submit a DD Form 149. e. The request for former spouse SBP was denied. During the 5 September proceedings, he was provided with a copy of the DD Form 2656-10, dated 15 January 2008, allegedly submitted by his ex-wife. The DD form 2656-10 provides the justification that there was an error by DFAS not acting on the January 2008 submission submitted by his ex-wife that can be adjudicated by the Board and not a case of his ex-wife and he not following published laws and regulations. 4. The servicemember's service record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was honorably retired on 31 August 2002 and transferred to the US Army Reserve Control Group (Retired). 5. The servicemember's service record is void of any documentation pertaining to election of SBP. 6. The applicant provides the following documents for the Board's consideration: a. A letter from her counsel To Whom It May Concern, dated 17 October 2007 stating he had attached an application for former spouse payment from retired pay to begin payments of her ex-husband's retired pay. b. A DD Form 2656-10, which shows: * the applicant's ex-husband as a retired servicemember * her name listed as former spouse * date of divorce was 4 June 2007 * the election was being made pursuant to requirements of a court order * the applicant signed the form on 15 January 2008 c. A Divorce Decree dated 1 June 2007, which shows: * the applicant was to receive half of her ex-husband’s retired pay including the Department of Veterans Affairs waiver portion less half of the SBP premium * this payment would terminate only upon the death of one of the parties except as additional payments may be allowed pursuant to the SBP * there was no other designation of SBP payments to the applicant d. A letter from DFAS to the applicant dated 26 June 207, which states: * the applicant's request could not be approved * the court order submitted did not provide an SBP annuity * she needed to submit a court order requiring such election or incorporates, ratifies or approves the written agreement of her ex-husband * the requested information needed to be received within 1 year of the filing date of the valid court order e. A self-authored letter to the Chief of Staff of the Army, dated 17 October 2018, which states: (1) She was writing the letter because she felt she was out of options and the letter was the only thing she had left to turn to. She was an Army wife for over 20 years. She moved frequently and the home she and her ex-husband retired in was her 17th address in 27 years. She was never around family to help with her children. She is a psychotherapist and it took her twice as long to get her license due to all the moves, trying to find internships, and supervisors to get her hours. (2) Her ex-husband retired in 2002 as a Lieutenant Colonel and they were divorced in 2007. At the time of the divorce, she still wanted to be entitled to SBP and was entitled to it due to all of her years as an Army wife. She sent in all of her paperwork in 2008 but it was not received by the military. She heard of a case where a military wife's ex-husband passed away and she thought she was getting her SBP and she found out she was not eligible for it. (3) She called just to check and make sure her that was not her situation and found out she was not eligible either because they could not find her paperwork. She contacted her ex-husband to see if he could help her. He had nothing to do with her and even contacted an attorney for himself. (4) She spent 15 months trying to get her SBP fixed with no cooperation from her ex-husband. Her attorney finally got a court date for September 2018. They went to court and her ex-husband signed all the documents needed for her to get his SBP. The judge signed the order and everything was faxed to the military. She thought it was done. (5) Two weeks later she received a letter stating she was still being denied her benefit because they didn't receive the paperwork in 2008. She was told there was nothing more they could do. (6) To sum it up she served 27 years as a military spouse making multiple sacrifices to support her ex-husband's career because they say they didn't receive paperwork in 2008 stating they were divorced she is being penalized the security of SBP. To make matters worse, because she is not eligible, her ex-husband's current wife can receive her benefit if he passes away. She just couldn't wrap her head around how that was possible. In court, everyone was in agreement she was entitled to this benefit and yet the military won't budge because a piece of paper was missing in 2008. (7) Short of trying to bring a lawsuit against the military for how ridiculous this rule is, she had no other option. If her ex-husband passes away, she is out her $2000 a month retirement check. That is a significant amount of money each month. She didn't know if the Chief of Staff of the Army could do anything to help but she was out of options. She thanked him in advance for anything he might be able to do to help not only her situation, but other military spouses in the future. Even though the spouses aren't the servicemember, their lives were very much affected by being a spouse but yet, that often goes unnoticed. f. A letter from Army Retirement Services, on behalf of the Chief of Staff of the Army, dated 31 October 2018, which states: * the letter was in response to her letter to the Chief of Staff of the Army concerning her eligibility for SBP * the law allowed state courts to treat SBP as marital property and award SBP to a former spouse * military members retiring could elect former spouse SBP voluntarily or court ordered * if divorced after retirement, the member could change SBP election to former spouse within one year of the divorce * a former spouse awarded SBP could request DFAS ensure the SBP election is former spouse within one year of the divorce * if the retired member fails to honor the former spouse election, DFAS will honor the former spouse's request and court order and make the election former spouse * the applicant was informed by DFAS there was not a record of her or that her ex-husband submitted the appropriate documents to change the election to former spouse * based on federal law, the SBP election cannot be changed to former spouse * requesting the court to award the former spouse SBP a second time did not, by law, restart the one year to request the SBP * the applicant could request the court hold her ex-husband in contempt of court and request she be awarded irrevocable insurance to replace the SBP * her ex-husband could request the Board change his SBP to state former spouse g. A letter from the applicant's counsel to DFAS, dated 7 September 2018, which included the forms for deeming the SBP, an affidavit from the applicant, the court order from 5 September 2018, and the divorce decree dated 4 January 2007. h. A self-authored Affidavit, dated 5 September 2018, which states the applicant submitted the forms required for SBP along with her divorce decree to DFAS on 15 January 2008. i. A court order, dated 5 September 2018, which stated the applicant and ex- husband would sign DD Forms 2656-1 to be submitted with the affidavit to DFAS. If the initial application for SBP was denied, the applicant's ex-husband would have to petition the Board for correction. j. A letter from the applicant's ex-husband's attorney, dated 13 September 2018, stating the applicant's ex-husband received a letter in November 2017 from DFAS regarding the refund of premiums paid for SBP. The total credit was $21,677.76. The applicant's ex-husband received half of that amount. The other half was attributable to the applicant. The ex-husband only received half the premiums paid. k. A letter to the applicant's ex-husband from DFAS, dated 20 November 2017 which indicates the ex-husband would receive $10,838.61 in refunds. The letter included the audit of the ex-husband's SBP account. m. A letter from DFAS, dated 20 September 2018, which states the applicant's application to deem SBP could not be processed because it was received more than a year after the receipt of her divorce. n. A letter for the applicant's attorney to the ex-husband's attorney, dated 21 September 2018, which states the letter forwarded to his office was interesting. The applicant had never received a refund because she was not a servicemember and did not have anything withheld from her survivor benefits. What he found more interesting was the fact the ex-husband changed the beneficiary to child in 2007. The document then indicates there was not a beneficiary from July 2010 through the date of the letter. That information coupled with DFAS indicating the change was made at the ex- husband's request showed there was an affirmative action on the part of the ex- husband to change the beneficiary. o. A motion to enforce by the applicant's counsel for the court to enforce the ex- husband to make the applicant his beneficiary for SBP. p. A self-authored letter to the Board, dated 19 December 2018, which reiterates the information she sent to the Chief of Staff of the Army on 17 October 2018. 7. The ex-husband's application contained copies of the documents submitted by the applicant with the exception of a letter from DFAS, dated 20 November 2017, which states: * an adjustment was being made to his SBP portion of his retired pay account based on documentation received from the ex-husband * the adjustment was from child coverage to no beneficiary with an effective date of 1 July 2010 * as a result his SBP cost had been changed to zero and would be reflected in his check for August 2017 * he was overcharged SBP premiums and would receive a credit in the amount of $10,838.61 8. The analyst of record contacted the ex-husband to request a written notarized letter from his current spouse indicating she was waiving her right to SBP and understood what she was giving up by signing the waiver. As of 24 June 2020, the analyst of record did not receive a notarized waiver of the current spouse's rights. 9. See applicable reference 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, the FSM’s record of service, his SBP election and ending SBP due to no dependents, the court- orders provided, the applicant’s attempts to obtain SBP and information regarding an FSM current spouse. The Board found that the language within the June 2007 divorce decree is unclear as to whether the FSM was required to elect former spouse SBP coverage. The Board noted that DFAS certainly found the divorce decree did not require such an election. Without a court order requiring the election of former spouse SBP coverage, the former spouse could not deem an election regardless of whether she elected within one year of the divorce. The Board found that an attempt was made to clarify the FSM’s marital status. Because SBP passes by category, not individual, granting the requested relief in favor of the former spouse would adversely affect the rights of a current spouse unless the current spouse affirmatively relinquishes her SBP interest. Based on a preponderance of evidence, the Board determined that absence additional evidence, the denial of SBP as requested by the applicant was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 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 chose. 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. ABCMR Record of Proceedings (cont) AR20190000684 9