ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 March 2023 DOCKET NUMBER: AR20190009853 APPLICANT REQUESTS: to receive the former service member's (FSM) Survivor Benefit Plan (SBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter FACTS: 1. The applicant, the former spouse of the FSM, states: * she requests that Defense Finance and Accounting service (DFAS) reexamine the decision to deny her receiving payments as the SBP recipient * she requests DFAS to approve her appeal and assign her as the designated recipient of the FSM's SBP * she was not aware her ex-husband of 24 years was paying into the SBP with her and their daughter as the beneficiaries after his death * the FSM and applicant were divorced on 27 October 2017 * the FSM died on 3 September 2018 * she received notice from DFAS which led her to go through the FSM's personal effects and important papers to confirm and support the notice from DFAS * she followed the instructions and mailed or faxed the requested documents * after sending the requested paperwork and speaking with several annuity representatives, she was informed payments would begin on 31 January 2019 * the payments did not begin, so she inquired on several occasions and was given new dates to start receiving benefits * on 10 May 2019, she called and spoke with an annuity representative and was informed she was denied payments because it was not requested in her divorce decree * she was not aware the FSM was paying into the SBP, so she could not make a request for something she did not know existed * she did some research and found information under the Uniformed Services Former Spouse Protection Act * it states a former spouse can be designated as a SBP beneficiary if the spouse was previously listed as a spouse beneficiary with a voluntary or court-ordered designation * divorce after retirement would give the former spouse coverage as the spouse coverage * they had not been divorced for a year when he died * the FSM voluntarily continued to pay the monthly premium * neither the FSM nor applicant remarried and her name was never removed from the SBP * she just started paying the mortgage on the house he left to their daughter * she has been managing the upkeep of the property * the delay in paying her the annuity is creating a financial hardship * their daughter is 23 years old and just finished college three months prior to the FSM's death * she requests the Board to reconsider DFAS's decision 2. The FSM was a member of the Regular Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 30 September 1997. 3. The FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) on 9 July 1997. The FSM choose SBP coverage for his then spouse and daughter. His wife's name was. The applicant's name is now. The applicant did not provide their marriage license, divorce decree, or the FSM's death certificate. The analyst of record requested these documents via the email address supplied by the applicant. The applicant did not respond. 4. The applicant received a letter from the Defense Finance and Accounting Services (DFAS) dated 7 February 2019. The letter requested a copy of the divorce decree showing she was awarded the SBP. 5. The applicant received a letter from DFAS dated 17 May 2019, stating: * DFAS determined the applicant was not entitled to receive an annuity under SBP * the FSM, upon retirement, elected to cover the applicant under SBP * the applicant loses eligibility upon divorce * a request from the applicant must have been received within one year of her divorce * a divorce decree alone does not constitute a deemed election * the FSM did not make a request to change his election to former spouse coverage * there was not a deemed election for former spouse coverage by the applicant * denial is the final decision of DFAS on this claim and the applicant can appeal to the Defense Office of Hearing and Appeals within 30 days of the date of the letter or it ends the appeal process 6. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 choose. 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. 7. Public Law 98-525, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage. 8. Public Law 99-145, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions. 9. 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 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. 10. 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 one year of the date of the court order or filing involved. 11. Public Law 92-425, the SBP, enacted 21 September 1972, states, to retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board found that, while the parties did not make the required former spouse election in one year of their divorce, the FSM’s death within a year of the divorce interrupted the applicant's ability to pursue this further. The Board found no evidence of a surviving spouse or eligible child beneficiary with a vested interest in the FSM’s SBP. Based on a preponderance of the evidence, the Board determined the FMS’s record should be corrected to show he submitted a former spouse SBP election within one year of their divorce. 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 he elected former spouse SBP coverage within one year of his divorce from the applicant. 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 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 choose. 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. 2. Public Law 98-525, provided that a former spouse could request a deemed election within one year of the court order requiring SBP to be established on the former spouse’s behalf provided the member agreed to provide coverage. 3. Public Law 99-145, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions. 4. 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 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. 5. 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 one year of the date of the court order or filing involved. 6. Public Law 92-425, the SBP, enacted 21 September 1972, states, to retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009853 1