IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210005017 APPLICANT REQUESTS: in effect, reconsideration of her previous request to be paid a former spouse Survivor Benefit Plan (SBP) annuity, as required by the terms of her divorce. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Letter, 8 July 2020 * Letter, 22 September 2021, with State Family Court Final Order of Divorce, 13 August 2001 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170003603 on 22 August 2019. 2. In her letter, 8 July 2020, she states: a. She has just received the decision from the ABCMR and frankly she is very much in distress and shocked. This is wrong, so wrong. b. She has no alternative but to hire an attorney for this matter which she regrets to say, but just to totally cancel a family for a pension which is expressed in the divorce papers which is due to a family. She and her children have worked very hard in many business ventures to make their retirement from the military. c. When they were filing for divorce she was asked to sign that she would not receive any of her spouse's monthly retirement check and he agreed she would receive 50 percent of his pension when he passed. She had an attorney that had been caught up in embezzlement fraud and after the divorce decree was signed, he closed his law practice. She believed that the divorce papers had said everything. She was told by a sergeant major that if she didn’t receive any letter saying anything different, there was no need to worry. d. This person named J____ had him move to the Philippines, so he couldn't see his children. She had him marry her so she would get everything and she was a 30-year old. She had nothing to do with the military. All these years that they were together, having three children, married in September 1963, why should she ever be considered to receive a pension; what a sham. She only knew him a short time and married, for her to receive something from his family and herself, she can't believe this is happening. e. She had been counting on the pension for her retirement and she is shocked at how this turned out. 3. The Army Review Boards Agency, Case Management Division letter, 8 September 2021, responded to the applicant's letter; stating, "It is unclear as to the specific corrective action you desire the ABCMR to take on your behalf. Without clarification or identification of an error or injustice, the ABCMR has no way of knowing the specific correction you are seeking and/or if you are seeking the board's reconsideration of it prior determination." 4. In her letter, 22 September 2021, she states: a. She has been corresponding since early January 2016, since her ex-spouse of 26 years, passed away on 7 January 2016. Her divorce decree plainly reads she is supposed to receive part of the pension from the military retirement. b. She is still fighting for retirement benefit, instead, a 30-year old is receiving her retirement. 5. As provided in ABCMR Docket Number AR20070003603, 22 August 2019: a. The applicant states when she and her former husband divorced, he did not change his coverage from spouse to former spouse to ensure she remained covered as ordered in the divorce and she was not told that she needed to file a deemed election request in the alternative. She believed her attorney had done everything required and she assumed that the divorce decree itself was sufficient. She is struggling financially and is working hard to keep what she has. She has a wonderful grandchild and when she is not working, she spends her time with him. b. The applicant provides: (1) A “Final Order of Divorce”, dated 13 August 2001, from Beaufort County, South Carolina in which applicant waived her right to a portion of her husband’s current military retired pay and he agreed to “maintain and pay for the SBP on his U.S. Army Pension and to name [applicant] as beneficiary thereon for so long as she is legally entitled to be the beneficiary.” (2) A U.S. Department of State “Report of Death of a U.S. Citizen or U.S. Non- Citizen National Abroad”, dated 20 January 2016, showing that her former husband died in Quezon City, Philippines on 7 January 2016 at the age of 76. The person responsible for his effects is listed as Mi__. (3) A Republic of the Philippines Office of the Civil Registrar General “Certificate of Marriage” showing applicant’s former husband wed Ma__ on 28 May 2015. (4) A letter from Defense Finance and Accounting Service to the applicant, dated 23 September 2016, denying her request for a former spouse annuity because no change from spouse to former spouse coverage was made either by her husband or by her, through a deemed election request, within one year of the divorce. c. A review of the former service member’s service record shows he enlisted in the Regular Army on 2 December 1964 and was honorably retired on 27 April 1982. In conjunction with his retirement, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 22 April 1982, in which he elected full spouse and children SBP coverage for the benefit of applicant and their three then-minor children. d. By law, changes in SBP coverage from spouse to former spouse must be received by the Secretary concerned within one year of divorce. e. The spouse of applicant’s former husband at the time of his death did not have a vested interest in SBP spouse coverage, because their marriage did not last at least one year. There is no statutory impediment to the requested relief. f. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. The applicant is correct when contending the former spouse election should have been made in accordance with the divorce decree. However, once the FSM [Former Service Member] remarried, public law took precedence over the court order in regards to the SBP in which the election for his new spouse is recognized unless the new spouse relinquished interest in the SBP in writing. Based upon public law, the Board agreed there was no error or injustice in this case. 6. The Defense Retired and Annuitant Pay System shows the applicant's deceased spouse's account was original set up as spouse and child coverage, effective 28 April 1982. His current election is shown as no beneficiary. The account shows that it changed to "No Beneficiary" on 30 September 2003. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board found no statutory barrier to granting relief in this case due to the fact that the applicant's former spouse's widow had not been married to him for a year when he died. The Board also found the applicant's divorce decree clearly stated that she would be maintained as the SBP beneficiary. While she could have taken action to effect that provision of the court order, she did not, and her former spouse also took no action to change his SBP election category to former spouse. As there is currently no beneficiary and in light of the divorce decree, the Board determined it would be appropriate to correct the record to show the applicant made a timely request for a deemed election of former spouse SBP coverage and to show her request was approved. As a result of this correction, the applicant should be paid the SBP annuity retroactive to the day after her former spouse's death. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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 the applicant made a timely request for a deemed election of former spouse SBP coverage and her request was approved. As a result of this correction, the applicant should be paid the SBP annuity retroactive to the day after her former spouse's death. 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. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), 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 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 retired service member by virtue of the retired service member's residence in the state (other than pursuant to military orders), domicile in the state, or consent. 3. Title 10, U.S. Code, section 1447 (Definitions), defines various terms related to the Survivor Benefit Plan (SBP). It states, in pertinent part, that the term “widow” means the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least one year immediately before his death. The term “widower” means the surviving husband of a person who, if not married to the person at the time she became eligible for retired pay, was married to her for at least one year immediately before her death. The term “surviving spouse” means a “widow” or “widower.” 4. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the Uniformed Services Former Spouses 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 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. 5. Title 10, U.S. Code, section 1450 (Payment of Annuity: Beneficiaries), governs beneficiaries and payment of SBP annuities. It essentially states, in pertinent part, that if a Plan participant is required pursuant to a court order to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives a written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made. The request shall include either a copy of a court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person, or a statement from the clerk of the court that such agreement has been filed with the court in accordance with applicable State law. An election may not be deemed to have been made in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved. 6. 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 service member is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005017 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1