BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20190000703 APPLICANT REQUESTS: as the former spouse of the former service member (FSM), correction of the record to show: * she was designated the Survivor Benefit Plan (SBP) annuitant at the full base amount * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Authenticated copy of marriage record * Attorney letter, dated 2 March 2018 * Divorce decree, dated 25 April 2011 * Death Certificate, dated 17 December 2016 * Hand written note number 1 * Defense Finance and Accounting Service (DFAS) letter, dated 8 May 2017 * Applicant letter to the Honorable Mr. T- Y-, dated 27 June 2017 * Honorable Mr. T- Y- letter to the applicant, dated 19 June 2017 * Applicant letter to DFAS, dated 9 June 2017 * Applicant letter to DFAS, dated 2 May 2017 * DD Form 2656-10 (SBP Reserve Component SBP Request for Deemed Election), dated 29 April 2011 * DD Form 2293 (Application for Former Spouse Payments from Retired Pay), dated 29 April 2011 * Hand written note number 2 * DFAS letter to the applicant, dated 24 April 2017 * SF 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), dated 21 February 2017 * Applicant letter to DFAS, dated 26 April 2017 * Congressional assistance request, dated 6 April 2017 * Applicant letter to DFAS, dated 17 January 2017 * Applicant letter to DFAS, dated 2 May 2017 * DD Form 2656-7 (Verification of Survivor Annuity), dated 15 January 2017 * Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 16 January 2017 * Form WH-4 (State of Indiana Employee’s Withholding Exemption and County Status Certificate), dated 17 January 2017 * SF 1199A (Direct Deposit Sign-Up Form), dated 16 January 2017 * Voided personal check * Attorney’s letter, dated 2 March 2018 * Email correspondence FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 states in pertinent part; a. At the time of divorce in 2011, she was assured under oath she had elected full SBP and it was not to be changed, which was indicated in the divorce decree. In July 2004, the FSM retired from the Army. He brought her paperwork, which included an SBP form and stated she had to re-sign now that he was retired because the formulas for calculating his payment to pay for the benefit had changed. She was assured that she was still requesting full SBP – 55 percent of his retirement pay in the event of the FSM's death, which she is entitled to under the 20/20/20 rule. The FSM stated the approximate $400.00 amount noted on the paperwork was an amount of reduction of five percent to pay for the benefit and that would go away upon his death. b. In April 2011, she and the FSM divorced. During their mediation the SBP was discussed. The FSM stated under oath he had elected full SBP. Her attorney was instructed to include the SBP in her decree, which she did. c. The FSM died on 16 December 2016. She reported the death within a couple of days. Her retirement benefit immediately stopped and she immediately requested her SBP to be instated. For several months she was on the phone with representatives from DFAS who provided different answers each time. Some said she was entitled and the payments were being processed, while others said she was not entitled at all, etc. She was told she was not authorized the benefit because she had not faxed the paperwork in time, which she had and provided proof. Other staff at DFAS said they did have the paperwork and she was entitled and it was being processed. Weeks of back and forth of these two scenarios turned into months. She has kept logs of each person she spoke with during this time. d. In approximately April 2017 she was told she was entitled and that she would receive an explanation of benefit with the first payment. In approximately May 2017 she received a payment without explanation. She again called DFAS and was told she was only receiving 5 percent because she elected to change the benefit back at the retirement date. She assured her "I would never have done that knowingly and there must be a mistake. Who would?" She also stated her divorce decree was signed based on acknowledgement of full SBP under oath, and that would supersede anyway. This confusion by DFAS continued throughout. e. After the FSM's retirement, she had believed that the FSM's change in behavior had stemmed from an inability to adjust outside of military life. The FSM accepted and was fired from several jobs, which she was not aware of at that time. This was an officer who was extremely capable. The FSM accepted a position working for a contractor in Afghanistan. Upon his return to the States, the FSM returned to MS to live with his mother instead of remaining with her and their youngest son in IN. f. Shortly after moving to MS and prior to their divorce, the FSM's mother took him to a doctor and he was diagnosed with frontal lobe aphasia, a form of dementia with a terminal prognosis. This disease specifically affects the communication system of the brain. It is believed the FSM had the symptoms as far back as within one year prior to retiring. Neither she nor his sons were made aware of this diagnosis until after their divorce was finalized. In fact, the FSM's family stated to her at his funeral they had made a pact not to tell them, but decided instead to let them believe he abandoned them. g. At no time throughout their marriage and subsequent divorce did the FSM ever suggest he had a reduced benefit. In fact, he once showed her an earning statement and pointed to SBP 55 percent. She can assure you both the FSM and her believed she had signed up for full SBP, 55 percent of his retirement pay. She believes the FSM was ill at the time of retirement and therefore did not understand and/or properly present to her the SBP documents. Further, he stated she had elected full benefit at the time of their divorce proceedings. Their divorce did not end communication between them. In fact, after learning of his illness, she understood that it was his illness that caused his changed behavior. The FSM continued to contact her monthly until he was no longer physically able to communicate. She believes his state of mind at retirement and his explanation of the benefit was flawed by the symptoms of his illness. She knows it was flawed at the time of their divorce, though she was purposefully not made aware. 3. A review of the FSM's official records show the following: a. On 9 July 1980, the FSM was appointed as a Regular Army commissioned officer and executed an oath of office. b. The FSM's records contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 19 February 2004 indicating the following: (1) Section 8 (Dependency Information) the FSM’s spouse was Ms. L- L- and they were married on 21 March 1981. (2) Section 9 (SBP Election) item 26 (Beneficiary Category) the FSM elected spouse only coverage. Item 27 (Level of Coverage) the FSM elected coverage at a reduced base amount of $595.00. (3) Section 11 (SBP Spouse Concurrence), item d (Street Address) shows "see spousal concurrence statement." c. On 3 March 2004, the FSM’s spouse completed a spousal concurrence statement indicating she concurred with the FSM’s SBP election of spouse coverage in the base amount of $595.00 which was less than the FSM’s full retired pay, and she signed the statement of her own free will. The applicant along with two witnesses endorsed this statement. d. The FSM's records are void of a DD Form 214 (Certificate of Release or Discharge from Active Duty). However, it contains a DA Form 638 (Recommendation for Award) submitted for retirement indicating his period of service was from on or about 9 July 1980 to on or about 1 August 2004. e. On 31 March 2020, the analyst of record contacted DFAS to obtain any documents related to the FSM's SBP elections or changes. DFAS provided the following documents: (1) DD Form 2656-10, dated 29 April 2011, showing the applicant applied for an SBP deemed election. (2) DD Form 2293, dated 29 April 2011, showing the applicant applied for 50 percent of the FSM’s disposable retired pay per month. (3) Applicant letter to DFAS, dated 17 January 2017, wherein the applicant provided as attachments DD Form 2656-7, FSM's death certificate, Form W-4P, Form WH-4, SF 1199A, and a voided personal check. Additionally, this letter states the applicant was informed DD Form 2656-10 was received by DFAS in May 2011, although it was faxed on 2 May 2011, DFAS did not receive it until 25 May 2011. She was also given two different fax numbers to send the information to. (4) DD Form 2656-7, dated 15 January 2017, showing the applicant was making a claim for SBP former spouse benefits. (5) FSM's death certificate showing the FSM died on December and the informant was his mother. (6) Form W-4P showing the applicant submitted the form for the appropriate taxation. (7) Form WH-4 showing the applicant submitted the form for the appropriate State taxation. (8) SF 1199A showing the checking account number for SBP deposits to be sent to. (9) Personal voided check with the account and routing number to her financial institution. (10) Mediated agreement to settlement incorporated into the divorce decree, wherein on page 9, item g it states “The spouse is hereby awarded 50% of the member’s retired pay, effective on the date this dissolution was filed” and on page 12, item w, it states "The parties agree herein that member has elected SBP, and that spouse is the beneficiary thereto. Member shall ensure that this beneficiary status is not changed by anyone or any entity for any reason." (11) A self-authored letter faxed to DFAS on 26 April 2017 that states, she has been informed DFAS sent a letter denying SBP annuity regarding the FSM. The letter stated the deemed election was not executed. In fact, it was executed on 29 April 2011. She attached a copy of the deemed election which was faxed to garnishment division on 2 May 2011, as noted on date stamp and signed by attorney Ms. R- K-. The FSM died on 17 December 2016. On 17 January 2017, she submitted a request for SBP payment and was told the paperwork was at garnishment division, and to note it on her paperwork, which she did as noted on her faxed form cover, also attached. She also attached a copy of the divorce decree which states on page 12, paragraph 12, the election of SBP was made and status cannot be changed. (12) DD Forms 2293 and 2656-10 was provided again with above mentioned letter faxed on 26 April 2017. (13) Memorandum, Subject: SBP, dated 22 May 2017, authored by a paralegal specialist with DFAS garnishment operations that states "This office is in receipt of an SBP deemed election that should have been honored in 2011. The claimant deemed election properly and SBP was awarded in the mediated agreement of settlement incorporated into the divorce decree. Please review again and add the claimant as the spouse beneficiary." 4. The applicant provides: a. Authenticated copy of marriage record showing applicant and FSM were married on 21 March 1981, along with divorce decree and death certificate mentioned above b. Attorney letter that states in pertinent part, she was the attorney of record and counsel for the applicant in her dissolution action in the State of Indiana. The dissolution of marriage action was filed by the applicant on 17 December 2010, and concluded by mediated agreement of settlement and decree of dissolution of marriage on 25 April 2011. Both parties were fully aware that SBP had been elected by the parties, and made their intention clear that the applicant's benefit entitlement would survive the divorce action. Both parties were operating under the assumption that full SBP had been elected. In retrospect, it appears that the FSM's health had declined far more than it was realized at the time of his retirement, and he was subsequently diagnosed with dementia, which the applicant learned of following the decree of dissolution, despite a diagnosis made well prior to that time, and which such information was intentionally withheld from her, their children, and me (as her counsel), by his family. The FSM ultimately, passed away on 17 December 2016. c. Hand written note number 1 wherein the applicant notes because the FSM elected a reduced benefit to $700.00 – 55 percent of $426.00 less taxes. She also notes the name of the individual she spoke with and was advised to petition the Board d. DFAS letter, dated 8 May 2017 wherein the applicant was informed all documents had been received to establish the SBP annuity. Her first payment was $1,784.94 for the period 18 December 2016 – 30 April 2017. e. Applicant letter to the Honorable Mr. T- Y- that states in pertinent part, based on your letter, she believes the response you received was intentionally misleading. In early May while waiting for a response from the appeals division, a deposit was made into her account for SBP, from 18 December 2016 through 30 April 2017. However, the amount was substantially lower than the full benefit of which she is entitled. The same day she received a letter of deposit with no explanation, but indicated DFAS was in receipt of all documentation for SBP and would send a letter of explanation which has never been received. She waited a full 30 days for a response and then sent a second letter to the appeals division requesting information as to why the benefit was less despite receiving proper documentation, including a court-ordered decree, and have still not heard from DFAS regarding this matter. Yesterday she received a "Collection Letter" from DFAS collection division regarding an overpayment for December 2016 as a former spouse - no explanation. The letter stated if she did not pay the sum stated she would be charged interest. This too, she questions, not to mention the audacity considering the circumstances. If she owes it, fine, but a full explanation should be standard operating procedure. She is not the service member and is not familiar with DFAS. She was not even able to access the retirement statements to determine if the benefits were accurate. f. Honorable Mr. T- Y- response to the applicant that states in response to his inquiries, officials with DFAS advised him the applicant’s inquiry response was in process. g. Applicant letter to DFAS, dated 9 June 2017, that states on 2 May 2017 she submitted documentation of full SBP annuity eligibility to the appeals division. She received a letter on 8 May 2017 from retired and annuitant pay stating all documentation was received, and yet the deposits do not reflect the maximum benefit she is entitled under the deemed election and divorce proceedings. She has also not received any explanation from their office as to why the full annuity has not been paid, despite the acceptance of the documentation submitted to the appellate division. She requests the difference between the amount already paid and the amount of full SBP {55 percent of retirement income) due to be immediately paid and the annuity corrected to reflect the full entitlement for future payments. She has sent this letter to both addresses to ensure proper attention because when she calls there seems to be confusion within DFAS. Please acknowledge in writing receipt of this letter and provide a point of contact for any future correspondence which may be necessary in this matter. h. Applicant letter to DFAS, dated 2 May 2017 that states in response to a letter of denial regarding SBP annuity eligibility, dated 24 April 2017, stating denial of entitlement to SBP annuity because she did not deem the election within one year following divorce, she offers the following; the divorce decree was certified on 28 April 2011 stating the FSM elected SBP coverage for her. She executed the deemed election on 29 April 2011 and faxed to DFAS on 2 May 2011. She was told by DFAS customer service it was received on or approximately 25 May 2011 and was located in the garnishment division and to note this on her cover letter when submitting documents for commencement of SBP annuity payments following the death of the FSM, which she did on 17 January 2017. When following up on the process, verification of receipt of deemed election and all proper paperwork was made by several customer service representatives since that date and over the course of four months. SBP deemed election was made as required and therefore valid. i. Hand written note number 2 wherein the applicant between 20 March and 6 April logged her interactions with multiple personnel from DFAS regarding the SBP. j. DFAS letter to the applicant, dated 24 April 2017, that states in pertinent part, she was not entitled to receive an annuity under SBP. The claim was denied in full because upon retirement the FSM elected to cover her under SBP. However, a spouse loses eligibility as a spouse beneficiary upon divorce. Retirees have the option to change their spouse coverage to former spouse coverage upon divorce. For this to become effective, they must receive a request from the retiree within one year of the divorce. If the retiree and the former spouse sign an agreement to continue SBP with former spouse coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for former spouse coverage if the retiree fails to elect coverage. The request for a deemed former spouse election must be received within one year of the divorce. A divorce decree alone does not constitute a deemed election. Your former spouse did not make a request to change his election to former spouse coverage nor was a deemed election for former spouse coverage made by you. The denial was final on the claim and she could submit an appeal to the Defense office of Hearing and Appeals. k. SF 1174 showing the applicant filed a claim for unpaid compensation. l. Congressional assistance request wherein the applicant requested assistance from the office of the Honorable Mr. T- Y- to resolve her SBP dispute. m. Email correspondence between the applicant and the FSM wherein the applicant states if the FSM can do anything to maintain SBP for her, that he please make sure he does. The FSM replied, stating in pertinent part, the applicant would receive 50 percent of his retiree pay on 1 July 2011, because he received a notification from the DFAS organization and they provided a form that showed that they are sending her $2700.10 beginning on 1 July 2011, so she would receive it. That is the legal amount from them for her because it is the amount he pays on SBP and the disability amount that is not included by them, so it is the amount of $5,661.00 minus those two things and again, she gets the amount of $2700.10. The FSM states he just wanted to let her know it is legal from them. 5. Army Regulation (AR) 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. See applicable SBP laws below ? BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board noted that the applicant submitted a request for a deemed election for former spouse SBP coverage shortly after her settlement agreement with the FSM was completed. The Board agreed that the later denial of her SBP claim was an error. The Board determined the record should be corrected to show her request for a deemed election was approved. 3. The Board noted that, prior to the FSM's retirement, the applicant concurred with his election of spouse SBP coverage based on a reduced amount ($595.00). The Board further noted that her settlement agreement with the FSM did nothing to change the amount on which the SBP annuity would be based. The agreement only specified that she would be maintained as the beneficiary. Based on a preponderance of the evidence, the Board determined the applicant's SBP annuity should remain based on the reduced amount. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing her request for a deemed former spouse Survivor Benefit Plan election was approved * showing her request for payment of the former spouse Survivor Benefit Plan annuity was approved * pay her the Survivor Benefit Plan annuity based on the reduced base amount of $595.00 effective the day after the former service member's death 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to paying the applicant the Survivor Benefit Plan annuity based on the former service member's full pay. 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, USC, 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 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. Department of Defense Financial Management Regulation (DODFMR): a. Dated September 2005, section 430303E states, effective March 1, 1986, a married member is enrolled with spouse coverage on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member. When the spouse’s concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. The spouse’s concurrence with, or request for, an election other than that requested by the member shall be disregarded. If all requirements for an election needing the spouse’s concurrence have not been satisfied prior to retirement, for whatever reason, full spouse costs and coverage will be implemented, regardless of any request by the member to do otherwise. b. Dated December 2010, section 430303E1 states, written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage. The signature of the spouse must be notarized. The requirement to have the spouse’s signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected. It simply provides certification that the spouse signed the form. If all requirements for an election needing the spouse’s concurrence have not been satisfied prior to retirement, for whatever reason, then full spouse costs and coverage will be implemented, regardless of any request by the member to do otherwise. A spouse’s concurrence with, or request for, an election other than that requested by the member, shall be disregarded. c. Section 010201c states all retiring members may participate in the SBP that provides a continuing annuity for the lifetime of a surviving spouse or other beneficiary of up to 55 percent of a base amount elected by the member not to exceed full retired pay. d. Section 430201 states a member who participates in SBP must elect a base amount of maximum coverage or reduced coverage. 3. 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. 4. 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000703 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1