IN THE CASE OF: BOARD DATE: 9 December 2021 DOCKET NUMBER: AR20210013721 APPLICANT REQUESTS: reconsideration of her request for correction of her deceased former husband's records to show she is his Survivor Benefit Plan (SBP) annuitant as his former spouse. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Request for Reconsideration, undated * County Circuit Court Final Decree, 27 July 2009 * Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services), 18 January 2018 * DD Form 2656-7 (Verification for Survivor Annuity), 18 January 2018 * Department of the Treasury Financial Management Service Form 2231 (Fast Start Direct Deposit), 18 January 2018 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 AR20190002067 on 15 September 2020. 2. The applicant, the former spouse of the deceased retired service member, states she never signed any documents declining the SBP. Her lawyer at the time of her divorce failed to include the SBP in the divorce decree. She was married to her husband for 24 years prior to their divorce and is entitled to his SBP, particularly because she never signed any documents declining this benefit. 3. The applicant and the service member married on 8 February 1985. 4. On 23 February 1993, the service member rendered his last will and testament wherein he appointed the applicant, his then-wife, as his personal representative. He declared that since he served in the Armed Forces of the United States, he directed his "Personal Representative to consult with a Legal Assistance Attorney at the nearest military installation and with the Department of Veterans Affairs and the Social Security Administration to ascertain if there are any benefits to which his family members are entitled by virtue of his military service." He further declared: " I give, devise and bequeath, absolutely and forever, all of my estate and property of which I may be seized or possessed, on to which I may be entitled, at the time of my death, wherever situated or of whatever nature, be it real, personal, or mixed, to my Wife, as her sole and absolute property if she shall survive me." The will is void of any reference to the SBP or life insurance. The applicant did not provide and the service member's records do not contain an instrument revoking the will and testament or execution of a new will and testament. 5. On 25 September 2003, the service member completed a DD Form 2656 (Data for Payment of Retired Personnel) wherein he listed the applicant and three children as dependents. Section IX (SBP Election) shows he elected full coverage for his spouse and children. 6. On 31 December 2003, the service member retired. 7. On 27 July 2009, the retired service member and the applicant divorced. The final divorce decree is void of any language regarding the SBP or life insurance. No marital separation agreement was provided that may contain language regarding the SBP. 8. The retired service member's death certificate, 10 January 2018, shows his date of death as 9 January 2018. It further shows the retired service member was married at the time of his death and names his daughter, as the informant. The name of the service member's daughter on the death certificate does not match the name of his daughter on his DD Form 2656. 9. On 18 January 2018, the applicant completed and submitted the following documents: * DD Form 2656-7 to verify eligibility for the SBP after the death of the retired service member * Standard Form 1174 to claim the deceased retired service member's SBP as the annuitant * Department of the Treasury Financial Management Service Form 2231 to indicate the account to be used to deposit SBP payments 10. On 15 September 2020 in Docket Number AR20190002067, the ABCMR denied the applicant's request for correction of the deceased retired service member's records to show her as the SBP annuitant as his former spouse. The Board determined the applicant was no longer an eligible beneficiary of the retired service member's SBP by law upon divorce, and the available evidence did not include a court-ordered divorce decree or marital separation agreement showing the retired service member and the applicant agreed that she would remain the SBP beneficiary under a new election for former spouse coverage. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found insufficient evidence to support a recommendation to change the determination made in the original consideration of this case. The applicant was not awarded SBP in her divorce proceedings, and as a result there was no basis for making a deemed election for former spouse coverage. The Board also noted the retired service member was married at the time of his death, which would mean his widow is the proper SBP annuitant under the statute governing the program. Based on a preponderance of evidence, the Board determined there is an insufficient basis for correcting the record to show the applicant is entitled to an SBP annuity as the retired service member's former spouse. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20190002067, dated 15 September 2020. 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), enacted 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 service member by virtue of the service member's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 2. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage (without the service member's agreement) in those cases where the service member had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 3. 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 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. 4. 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 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013721 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1