IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220006726 APPLICANT REQUESTS: correction of his mother's late husband's Survivor Benefit Plan (SBP) to show he designated her as the SBP annuitant. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) . Marriage Certificate, 8 February 2018 . Durable Financial Power of Attorney, 5 August 2016 . Certificate of Death, 12 December 2017 . Letter from Osteopathic Medicine Doctor, 26 March 2018 . Letters to Defense Finance Accounting Service (DFAS), U.S. Military Retired Pay, 16 August 2021 and 28 November 2021 . Letter from DFAS to Applicant, 10 November 2021 . Letter from DFAS to Congressional Representive, 21 January 2022 FACTS: 1. The applicant, the son and attorney-in-fact of the surviving spouse of the deceased retired service member (SM), states: a. His mother should be designated as the rightful SBP annuitant of the deceased retired SM effective 12 December 2017, the date of the retired SM's death. Per the summary letter from DFAS, 21 January 2022, the record is incorrect where it is states "later divorced." The retired SM died happily married to his mother. The letter is also inaccurate/unclear about to whom the deceased SM was married upon his retirement in 1988. The retired SM and his mother were married in 1984 and remained married until his passing. b. The retired SM designated his mother as his SBP beneficiary in 1988 and therefore did not make any changes to that designation 28 years later when his first wife passed in 2016. Any stipulation in the SM's divorce decree with became null upon her death. Based on a conversation with DFAS Customer Service, it is not unusual for an SM to overlook any SBP changes, especially when years pass and mental capabilities diminish. c. As his mother's attorney-in-fact, he never received the 27 February 2020 DFAS letter. If he had received said letter, he would have taken appropriate action to honor the deceased retired SM's wishes and to support his mother. He has not yet seen this letter. He maintains ongoing communication with DFAS to correct this injustice. 2. The Headquarters, First U.S. Army, memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), 1 May 1978, notified the SM that he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60. 3. There is no documentation indicating the SM was notified that he was eligible to participate in the Reserve Component SBP (RCSBP) and instructing him to submit a DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election Certificate) within 90 days of the date of the 20-year letter. 4. Headquarters, First U.S. Army, Orders 202-14, 15 October 1982, reassigned the SM to the U.S. Army Reserve Control Group (Retired Reserve) effective 25 December 1982. 5. On 17 October 1984, the SM married . The marriage certificate shows both the SM and were previously divorced before their marriage. 6. The SM's military records contain no information regarding his divorce from his previous spouse. 7. The SM reached age 60 in June 1988. His military records contain no orders placing him on the Retired List. 8. On 5 August 2016, the retired SM's spouse appointed him as her attorney-in-fact. In the event that he was unable, unwilling, or ceased to serve as her agent for any reason whatsoever, she appointed , her son (the applicant), as her alternate agent. 9. On 12 December 2017, the retired SM died. He was 89 years old. 10.On 28 March 2018, the deceased retired SM's surviving spouse's physician deemed she was no longer able to manage her finances or make health care decisions due to her medical condition. 11. On 16 August 2021, the applicant submitted a letter to the DFAS Military Retired Pay Office, inquiring on his mother's behalf. He stated the deceased retired SM contributed to his SBP to near completion of the fully paid 360 months before he passed away. His first wife predeceased him and any stipulation regarding the SBP in the divorce decree from his first marriage terminated with her passing. The deceased retired SM was married to his mother longer than to his first spouse. The SBP annuity should be paid to his mother as his only surviving dependent. 12. On 10 November 2021, the DFAS Military Annuitant Pay Office replied to the deceased retired SM's surviving spouse in care of her son. DFAS stated that on 19 October 2021, DFAS received her appeal of its denial of her claim for SBP benefits. DFAS denied her claim on 27 February 2020. As noted in the denial letter, she had 30 days from the date of the letter to file an appeal. Because her appeal was not received within 30 days of the denial letter, her appeal was deemed untimely and DFAS could not accept her appeal. The decision to deny her claim constituted final DFAS action. 13. On 28 November 2021, the applicant submitted a letter to the DFAS Military Retired Pay Office wherein he stated he never received the referenced 27 February 2020 letter. He considered this an open issue and stated his mother is the rightful beneficiary of the deceased retired SM's SBP annuity. 14. On 19 January 2022 and 21 January 2022, DFAS replied to a Congressional inquiry on behalf of the deceased retired SM's surviving spouse as to her entitlement to the SM's SBP benefits. DFAS stated: a. Retirees have the option to change their SBP spouse coverage to former spouse coverage within 1 year of divorce. The former spouse of a retiree also has an option to deem an election. b. There are two requirements for a deemed election to be valid. The first is that the divorce decree must clearly indicate the former spouse is entitled to coverage under the SBP. The second is the request for a deemed former spouse election must be received within 1 year of the divorce. A former spouse must meet both requirements in order to be the eligible former spouse SBP beneficiary. c. Upon separation from the Army on 9 June 1988, the SM elected spouse SBP coverage for the individual he was married to at retirement and later divorced. Former spouse SBP coverage was awarded. d. DFAS did not receive the appropriate documents from the retired SM to re-elect spouse SBP coverage after the death of his former spouse on 16 August 2016. e. On 27 February 2020, DFAS sent a letter to the deceased retired SM's surviving spouse outlining the determination and the denial of her eligibility as the spouse SBP beneficiary. The letter also advised her of her right to appeal the DFAS denial to the Defense Office of Hearings and Appeals. The deceased retired SM's surviving spouse had 30 days from the date of the letter to file a claim for the SBP annuity through the Defense Office of Hearings and Appeals. f. On 19 October 2021, DFAS received the applicant's appeal. DFAS considered this claim untimely and closed this avenue of appeal. Under separate cover on 10 November 2021, DFAS issued a letter of explanation. g. The applicant may petition the ABCMR to review the deceased retired SM's surviving spouse's claim and request correction of the deceased retired SM's records to show he deemed re-election of spouse coverage. DFAS does not have the authority to change the record without authorization from the ABCMR. 15. Email correspondence from a DFAS representative, 2 December 2022, states the Defense Retiree and Annuitant Pay System does not have any SBP documents on file for the applicant. The deceased retired SM did not add his surviving spouse to his SBP after his former spouse passed away. 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 contentions, the SM's military records, and regulatory guidance. Documentation available for review is void evidence that the former service member added his surviving spouse to his Survivor Benefit Plan after his former spouse passed away. In the absence of documentation showing otherwise, based on the preponderance of the documentation available for review the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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 determined 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 for correction of the records of the individual concerned. 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 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. Members cannot cancel SBP participation or change options they had in RCSBP. RCSBP coverage automatically converts to SBP coverage upon retirement. 3. 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 SM by virtue of the SM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 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 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. 5. The National Defense Authorization Act for Fiscal Year 2016 amended the SBP statute to provide a member who had made an election to provide SBP or RCSBP coverage for a former spouse the ability to cover a subsequent spouse if the former spouse dies. The enactment of this legislation included provisions in the form of an open enrollment season to accommodate members whose covered former spouse beneficiaries were already deceased when the legislation was enacted. 6. The DFAS website provides that SBP elections are made by category, not by name. Options include "Spouse Only," "Spouse and Child(ren)," "Former Spouse," "Child(ren) Only," "Natural Interest Person," "No Beneficiary," and "Decline." //NOTHING FOLLOWS//