IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20220001381 APPLICANT REQUESTS: reconsideration of her previous requests for correction of her ex-husband's records, a deceased retired service member (SM), to show he enrolled in the Survivor Benefit Plan (SBP) and changed his election from "Spouse" to "Former Spouse" so she may be entitled to his SBP annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Applicant's Letter to the Army Review Boards Agency, 4 October 2021 * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) Continuation Sheet (Prior Application) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in: * Docket Number AR2014000 on 12 March 2015 * Docket Number AR2015007 on 20 October 2016 * Docket Number AR2017000 on 8 January 2020 2. The applicant, the former spouse of the deceased retired SM, states she was denied the SM's SBP annuity because the wording was wrong in the original divorce decree. The original divorce decree referred to the SBP as the "Veterans Affairs Survivor Plan," although all parties at the time understood it was intended to reference the SBP. She fulfilled the statutory requirements relating to deemed elections that allows her to collect benefits under the SBP as decreed in the original divorce decree. a. After the SM's death in 2013, she contacted the Defense Finance and Accounting Service (DFAS) to initiate SBP payments and was told the SM's records must be corrected through the Army Review Boards Agency (ARBA) for her to receive benefits. All available documents and exhibits were submitted to ARBA in 2014. ABCMR Docket Number AR2014000, 12 March 2015, was denied because the Amended Final Judgment of Dissolution of Marriage did not explicitly refer to the SBP, but did refer to the "Veterans Affairs Survivor Plan." Additional evidence from her counsel indicated the "Veterans Affairs Survivor Plan" noted in the Amended Final Judgment of Dissolution of Marriage did indeed refer to the SBP. b. ARBA considered the new information in ABCMR Docket Number AR2015001, 20 October 2016. The Board stated: "The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's [former service member's] current widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current widow was a party, divesting the current spouse of her interest in the SBP." Upon reaching out to the deceased SM's current widow, she determined the widow is now deceased. It is therefore impossible to obtain the declaration or court order as requested by the Board. She believes the death of the SM's widow has the effect of relinquishing any current interest in the SBP annuity, thereby effectively addressing the requirement stated by the Board to reconsider her request. c. She has been treated so unfairly throughout the entire process. She will never receive what she was entitled to receive. 3. On 9 March 1966, the SM retired by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL). 4. The memorandum from an unidentified command (Temporary Disability Retirement – Mentally Incompetent), 15 March 1966, states the SM was declared mentally incompetent on 2 November 1965. He was relieved from assignment and duty on 9 March 1966 and placed on the TDRL effective 10 March 1966. 5. On 30 August 1968, the SM and the applicant married. 6. On 1 December 1970, the SM retired by reason of permanent disability. 7. A handwritten note from an unknown source, 23 August 1972, states the applicant was removed from the TDRL on 30 November 1970 and placed on the Permanent Disability Retired List effective 1 December 1970. 8. The U.S. Army Finance Support Agency letter (Retired Serviceman's Family Protection Plan (RSFPP) or SBP), 22 September 1975, informed the retired SM that he made an election under the RSFPP or SBP. The payment of his monthly annuity cost of $5.65 was due on the last day of each month. He was indebted for $45.53 in annuity costs through 31 August 1975. 9. The Department of Veterans Affairs (VA) letter, 16 October 2003, states the retired SM is in receipt of 50-percent compensation at the rate of $695.00 monthly. The retired SM receives VA compensation in lieu of military retired pay. 10. The retired SM's March 2005 SBP/RSFPP Premium Statement shows he was current with his SBP premium payments. 11. The Separation and Settlement Agreement, 28 November 2005, states: "The Husband [SM] agrees that the Wife [Applicant] shall be entitled to the SBP option to his USPS [U.S. Postal Service] retirement and that language providing for the same shall be included in any Final Judgment entered which terminates the marriage between the parties." No mention is made to the retired SM's military SBP. Each page of the agreement is initialed by the applicant and page 12 is signed by the applicant and witnessed. The agreement is not signed by the retired SM. 12. The Circuit Court Amended Final Judgment of Dissolution of Marriage, 25 April 2006, states: "The Wife [Applicant] shall be designated the sole beneficiary of the Husband's [SM's] Veterans Affairs Survivor Plan." 13. On 5 September 2006, the applicant submitted a letter to an unidentified agency (presumed to be DFAS) notifying that agency of her divorce from the retired SM and her court-ordered award of the retired SM's SBP. 14. On 6 November 2006, the applicant submitted an SBP deemed election to DFAS via facsimile. 15. On 13 November 2013, the retired SM died. At the time of his death, he was married to 16. On an unknown date, the applicant submitted a letter to an unidentified agency (presumed to be DFAS) informing that agency of the retired SM's death. She stated she had notified that agency of her divorce from the retired SM within the 1-year time frame following their divorce and was now inquiring about her next steps pertaining to the SBP. 17. Email correspondence with the DFAS Retired and Annuity Pay Office, 30 May 2014, states the retired SM had no beneficiary listed for his SBP. The divorce papers clearly state the applicant is awarded the retired SM's U.S. Postal Service SBP and survivor benefits from the VA. The applicant attempted to deem the military retired pay SBP, but there is no mention of the military retired pay SBP in the divorce decree, so her attempted election was invalid. 18. On 12 March 2015 in Docket Number AR2014000, the ABCMR denied the applicant's request to correct the deceased retired SM's records to show he enrolled in the SBP and changed his election from "Spouse" to "Former Spouse." The Board stated: a. The evidence of record shows the retired SM elected VA compensation in lieu of military retired pay. As such, he was required to pay SBP premiums, and the evidence indicates his payments were "caught-up." b. The evidence further shows the applicant and retired SM divorced on 25 April 2006. Shortly thereafter on 5 September 2006, the applicant notified DFAS of their divorce and her entitlement to the SBP. b. The Amended Final Judgment of Dissolution of Marriage stated the applicant shall be designated the sole beneficiary of the former SM's VA Survivor Plan and not the SBP. Since there is no mention of military retired pay SBP in the divorce decree, DFAS considered her attempt to deem the military retired pay SBP election as invalid. 19. On 18 October 2016, , the surviving spouse of the deceased retired SM died. Her death certificate shows she was widowed at the time of her death. 20. On 20 October 2016 in Docket Number AR2015001, the ABCMR denied the applicant's request to correct the deceased retired SM's records to show he enrolled in the SBP and changed his election from "Spouse" to "Former Spouse." The Board stated: a. The Amended Final Judgment of Dissolution of Marriage order indicated the applicant would be designated as the sole beneficiary of the former SM's VA Survivor Plan. It did not reference the military SBP. The applicant provided a letter wherein she requested several changes through her attorney, including adding receipt of the SBP annuity to their Settlement Agreement. She provided no evidence to indicate those changes, if any, were made to the agreement and the final decree remained silent as to the military SBP. Since there was no mention of the military SBP in their divorce decree, DFAS considered her attempt to deem the military SBP election as invalid. b. Even if otherwise inclined to grant relief, the Board will not correct the deceased retired SM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse of a property interest without due process of law. The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the deceased retired SM's current widow as a party in order to protect her proper interest and rights. If the court determines the applicant is the proper SBP beneficiary, she may apply to the ABCMR for reconsideration. 21. On 8 January 2020 in Docket Number AR2017000, the ABCMR denied the applicant's request to correct the deceased retired SM's records to show he enrolled in the SBP and changed his election from "Spouse" to "Former Spouse." The Board noted that although the deceased retired SM's current spouse is deceased and the applicant is therefore unable to obtain consent to relinquish the SBP annuity, the Board agrees there was insufficient evidence showing the applicant was authorized SBP former spouse coverage pursuant to their divorce decree. 22. The Defense Retiree and Annuitant Pay System has no SBP documents on file for the deceased retired SM. 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 not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined that DFAS had no supporting document on file for the former service member regarding SBP. The Board noted the previous board request to have the current spouse to provide a signed, notarized declaration from the deceased retired SM's current widow as a party in order to protect her proper interest and rights. Evidence in the record show the current spouse of the FSM is deceased now and unable to have consent to relinquish the SBP annuity. Furthermore, the Board determined the FSM record is absent sufficient evidence in the divorce decree to show the applicant was authorized the SBP. Based on the facts and circumstance, the Board agreed relief is not warranted and reversal of the previous case has no merit. 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 Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number: * Docket Number AR2014000 on 12 March 2015 * Docket Number AR2015001 on 20 October 2016 * Docket Number AR2017000 on 8 January 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 92-425, the SBP, enacted 21 September 1972, 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. 2. Public Law 97-252, the Uniformed Services Spouses Protection Act (USFSPA), enacted 8 September 1982, established SBP for military spouses. This law also decreed that State courts may 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 SM by virtue of the SM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 3. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits an SM to elect to provide an annuity to a former spouse. Any such election must be written, signed by the SM making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce. The SM 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 SM 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 SM is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001381 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1