IN THE CASE OF: BOARD DATE: 19 July 2022 DOCKET NUMBER: AR20210016070 APPLICANT REQUESTS: correction of the deceased retired service member's (SM's) records to reflect he changed his Survivor Benefit Plan (SBP) election from "spouse and child(ren)" to "former spouse" coverage or the applicant submitted a deemed election within 1 year of divorce. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored Statement, 8 September 2021 * State Certificate of Marriage, * 1st Indorsement (Request for Retirement (Applicant)), 6 March 1995 * DD Form 2656 (Data for Payment of Retired Personnel), 14 August 1995 * DA Form 7301-R (Officer Service Computation for Retirement), undated * Superior Court Notice of Decision, 8 August 1996 * DD Form 2293 (Application for Former Spouse Payments from Retired Pay), 21 March 1997 * Defense Finance and Accounting Service (DFAS)-Cleveland Form 7220/148 (Retiree Account Statement), effective 29 January 2020 * Defense Office of Hearings and Appeals (DOHA), 25 August 2021 FACTS: 1. The applicant, the former spouse of the deceased retired SM, states: a. Immediately upon their divorce, her ex-husband worked for the U.S. Government as a contractor in harm's way. In light of this risk, and the fact that she was responsible for caring for his minor children, either or both of them would have changed his SBP election to former spouse coverage. She didn't learn about the requirement until his death in January 2020. b. According to his retiree account statement, DFAS withheld SBP costs from his retired pay for 25 years, up to the time of his death in 2020. This fact raises a strong argument for equity. c. Their divorce decree did not address the SBP. d. As a military wife of 15 years, she did everything in those years to help her husband be successful, including giving up her citizenship to enable him to gain a Top Secret security clearance. She feels it is an injustice to herself that their divorce would negate all of her sacrifices and that there is only 1 year from the time of divorce to make a deemed election for an annuity. There were no instructions to do so. She pleads for correction of his records to show she made a deemed election within the correct time frame for receipt of an SBP annuity. 2. The SM and the applicant married on 13 September 1980. 3. Following prior enlisted service, the SM was appointed as a Reserve warrant officer on 18 April 1986. He was subsequently appointed as a Regular commissioned officer and attained the rank/grade of chief warrant officer three (CW3)/W-3 effective 1 June 1992. 4. The SM's DD Form 2656, 14 August 1995, shows in: a. Section VI (Dependency Information), his spouse as (the applicant) with a date of marriage of 13 September 1980 and two dependent children; b. Section VII (SBP Election), block 29 (Beneficiary Category(ies)), he placed an "X" in the box by the statement: "I elect coverage for spouse and child(ren)"; c. Section VII, block 30 (Level of Coverage), he placed an "X" in the box by the statement: "I elect coverage to be based on full gross pay"; d. Section VIII (Survivor Benefit Spousal Concurrence), his spouse and a witness from the Retirement Services Office (RSO), Fort Devens, MA, signed the form on 27 July 1995; and e. Section IX (Certification), the SM and a witness signed and dated the form on 14 August 1995 at Fort Devens, MA. 5. The 1st indorsement (Request for Retirement (Applicant)), 6 March 1995, shows the SM's commander approved his request for retirement. 6. The SM retired on 31 August 1995 in the rank/grade of CW3/W-3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 4 months, and 13 days of net active service during this period and 15 years, 9 months, and 23 days of prior active service. 7. The Superior Court Notice of Decision noted a divorce decree was approved between the applicant and the retired SM effective 8 August 1996. (Note: The divorce decree citing the division of assets is not available for review.) 8. The DD Form 2293, 21 March 1997, shows the applicant requested a percentage of the SM's retired pay per month based on a court order. 9. The SM's death certificate, 13 January 2020, shows he died on 9 January 2020. His marital status is shown as "Divorced" and his daughter is listed as the informant. 10. The SM's retiree account statement, 29 January 2020, shows no SBP costs for the current pay period but shows SBP costs for the previous pay period and notes "No SBP election is reflected on your account." 11. The DOHA letter to the applicant, 25 August 2021, disallowed her claim for an SBP annuity as the former spouse of the deceased SM. The letter notes the SM died of natural causes on 9 January 2020. The divorce decree did not address the issue of SBP coverage; nevertheless, the DFAS database records report the SM paid into the SBP for 293 months as of March 2018. The letter also noted: "(B) An election may not be deemed to have been made under subparagraph (A) 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." Neither the applicant nor the deceased SM made a request to change the SM's election to former spouse under the SBP within 1 year of divorce. These considerations raise strong arguments of an equitable nature; however, DOHA is not in a position to set aside or ignore the words of the statute set forth above and must follow the letter of the law and cannot adjudicate a claim based on equity. 12. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 13 June 2022, notes the SM retired with spouse and child SBP coverage. The retired SM's current SBP is "no beneficiary coverage" as of 8 August 1996, the date of his divorce, and former spouse coverage was not deemed within 1 year of divorce. The retired SM died on 9 January 2020. The DFAS pay technician further noted the DFAS database contains the following documents: a. an undated self-authored statement informing DFAS of the SM's death and the filing of a deemed election after their divorce; b. a DFAS letter, 31 January 2019, informing the applicant that she was not entitled to receive an annuity under the SBP and that her claim was denied in full. It further noted she could appeal to DOHA; c. the applicant's DD Form 2293, 21 March 1997; d. the SM's divorce documents, 8 August 1996, with a complete Qualified Domestic Relations Order. This order did not specify an entitled or award of an SBP annuity to the applicant; e. the applicant's self-authored statement to DFAS, 30 November 2020, with associated documents requesting an SBP annuity; f. a statement of funeral expenses, with assignment of insurance, both dated 18 January 2020; and g. the DOHA letter, 25 August 2021, denying the applicant's claim. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the SM's military records, the Board found that relief was warranted. The applicant's contentions, the SM's military records, and regulatory guidance were carefully considered. The Board note that the deceased FSM intended to have a former spouse remain as an SBP beneficiary but failed to accomplish the necessary administrative actions to effectuate that intention. In this case, the FSM’s intent to maintain SBP coverage for his former spouse (the applicant) is demonstrated by the FSM permitting SBP premiums to be deducted from his retirement pay for more than 24 years. The Board perceived this as an injustice, given the fact that the FSM paid tens of thousands of dollars in premiums only to have the Army refuse benefit payments to a former spouse who the FSM seemingly intended as his SBP beneficiary. The DOHA opinion persuasively articulates the equitable reasons why relief may be appropriate. The Board determined an injustice exists and voted to correct the FSM’s records to reflect that the FSM changed the SBP election designation from “spouse” to “former spouse” within 1 year of his 1996 divorce from the applicant. 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 that the evidence presented was 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 FSM made a voluntary change in SBP election from spouse to former spouse on 1 September 1996 (the first day of the month following his divorce) * showing the request was received and processed by the appropriate office in a timely manner * paying to the applicant the SBP annuity retroactive to the day after the FSM'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, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 8 September 1982, established SBP coverage for former spouses of retiring members. 3. Public Law 98-94, 24 September 1983, established former-spouse coverage for retired members. 4. Public Law 99-661, 14 November 1986, permitted divorce courts to order SBP coverage without the member's agreement in those cases where the retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 5. 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 already participating in the plan 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. 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 person is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016070 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1