IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220010219 APPLICANT REQUESTS: * correction of her deceased former husband's records to show he elected "former spouse" Survivor Benefit Plan (SBP) coverage within 1 year of their divorce * payment of the SBP annuity from the date of her former husband's death through 13 September 2022 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) * Defense Legal Services Agency, Defense Office of Hearings and Appeals (DOHA), Appeal Decision, 26 May 2022 * Claims Appeals Board Reconsideration Decision, 17 September 2019 * Clay Long-Term Care Team Letter, 11 July 2022 * Letter to Army Board for Correction of Military Records (ABCMR), 3 July 2022 * Table of Contents * Establishment of ABCMR Eligibility * Summary of Events * Timeline of Events * Request * Evidence * Arguments * Discussion * Discussion of the Barring Act * Additional Considerations * Relevant and Material Documents Exhibit List * Exhibit A – Marriage Certificate, 3 November 1961 * Exhibit B – Certificate of Live Birth, 1 May 1963 * Exhibit C – Report of Birth Abroad, 16 September 1965 * Exhibit D – DD Form 214 (Report of Separation from Active Duty) for the period ending 30 June 1976 * Exhibit E – Last Will and Testament of the Deceased Retired SM, 7 May 1985 * Exhibit F – Last Will and Testament of the Applicant, 1 November 1985 * Exhibit G – Final Judgment of Dissolution of Marriage, 7 March 1986 * Exhibit H – Letter from Retired SM to Applicant, 2 January 1991 * Exhibit I – Designation of Beneficiary Information, 11 January 2001 * Exhibit J – Retiree Account Statement (RAS), 4 April 2001 * Exhibit K – Letter from Retired SM to Applicant, 22 January 2002 * Exhibit L – Notes in Passing * Exhibit M – RAS, 2 December 2003 * Exhibit N – Certificate of Death (Retired SM), 30 December 2003 * Exhibit O – Letter to Defense Finance and Accounting Service (DFAS) from Applicant, 16 February 2004 * Exhibit P – Letter to Applicant from DFAS, 18 March 2004 * Exhibit Q – Letter to DFAS from Applicant, 8 April 2004 * Exhibit R – Durable Power of Attorney, 17 December 2012 * Exhibit S – * DD Form 2656-7 (Verification for Survivor Annuity), 14 August 2019 * Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), 14 August 2019 * Financial Management Service Form 2231 (FastStart Direct Deposit), 20 August 2019 * Exhibit T – Letter to Applicant from DFAS, 13 September 2019 * Exhibit U – Letter to DFAS from Applicant, 26 September 2019 * Exhibit V – Letter to DFAS from Applicant, 16 February 2004 * Exhibit W – Letter to DFAS from Applicant, 20 June 2020 * Exhibit X – Letter to the Applicant from DFAS, 21 September 2020 * Exhibit Y – Letter to DFAS from Applicant, 9 October 2020 * Exhibit Z – * Counsel's Letter, 19 January 2021 * U.S. Court of Federal Claims, Holmes v. United States, 31 May 2011 * Exhibit AA – Letter to Applicant from DFAS, 12 February 2021 * Exhibit BB – Letter to DFAS from the Applicant, 7 March 2021 * Exhibit CC – U.S. Court of Federal Claims, Holt v. United States, 18 February 2005 * Exhibit DD – The National Veterans Legal Services Program Files Class Action Lawsuit Accusing U.S. Military Departments of Violating the Rights of Veterans to Timely Decisions on Their Life-Changing Applications to Correct Military Records, 18 December 2019 * Exhibit EE – How to Identify the Status of Spouse/Former Spouse SBP Coverage on your RAS * Exhibit FF – Army Publishing Directorate Website Search Results, undated * Letter to ABCMR from Applicant's Daughter, 12 October 2022 * Certification of Death (Applicant), 13 September 2022 FACTS: 1. The applicant, the former spouse of the deceased retired service member (SM), died on 13 September 2022 after submitting her application to the ABCMR. The applicant's and SM's daughters and attorneys-in-fact are the sole heirs to their estates and continue to pursue her application. 2. The daughters of the applicant and deceased retired SM state the retired SM paid SBP premiums from his retirement in 1976 until his death in 2003 with the full intent that the applicant, his former spouse, would be paid SBP benefits upon his death. They further state: a. In 2004, the applicant contacted DFAS requesting the necessary forms to begin receiving SBP benefits, but DFAS did not respond to her requests. In addition, DFAS changed the deceased retired SM's SBP election from "Spouse" to "No Benfy [No Beneficiary]" without notification. They discarded or lost pertinent documents of record. b. The applicant has substantial and irrefutable evidence that she is entitled to these benefits. c. The deceased retired SM never remarried and there is not competing claim to these benefits. He made monthly payments to his SBP from his retirement on 1 July 1976 until his death on 30 December 2003. 3. The SM married the applicant, , on 3 November 1961. 4. On 14 May 1976, the SM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) showing he was married to the applicant and had two dependent children. He elected "Spouse Only" coverage at the reduced rate of $300. His DA Form 4240 is properly signed, dated, and witnessed. 5. The SM retired on 30 June 1976. 6. On 7 March 1986, the retired SM and the applicant divorced. Their divorce decree stated the retired SM will continue to maintain the applicant as beneficiary under the Military SBP until the applicant's death or remarriage, whichever occurs first. 7. On 11 January 2001, the retired SM designated his two daughters as his beneficiaries of any retired pay he is owed when he dies. 8. The retired SM's RASs, 4 April 2001 and 2 December 2003, show he carried "spouse only" SBP coverage and the amount deducted for that cost. The SM's RASs further show the applicant's date of birth as the spouse's date of birth. 9. The retired SM died on 30 December 2003. He was divorced at the time of his death. 10. On 16 February 2004, the applicant notified DFAS of the retired SM's death. She further requested that DFAS send her the necessary forms needed to request the SBP annuity. 11. On 8 April 2004, the applicant notified the Headquarters, Army Retired Services, of the retired SM's death. She stated she called DFAS twice regarding the documents needed to request the SBP annuity, but she had not received them. She requested the necessary documents to begin receiving SBP benefits. 12. On 17 December 2012, the applicant executed a durable power of attorney wherein she appointed both of her daughters as her true and lawful attorneys. The power of attorney was properly signed, witnessed, and notarized. 13. The applicant completed a DD Form 2656-7 (Verification for Survivor Annuity) on 14 August 2019 wherein she claimed SBP benefits for spouse. The applicant indicated she was divorced from the deceased SM and had not remarried. 14. On 13 September 2019, DFAS Retired and Annuitant Pay denied in full the applicant's claim for entitlement to the SBP annuity from the military retired pay account of the deceased retired SM. The Barring Act bars payment of any claim not received within 6 years from the date it accrues. SBP annuity claims accrue upon the death of the retired member. The first claim for the SBP annuity the applicant sent was received on 16 August 2019. She presented a claim for an annuity which is more than 6 years after the claim accrued. Her claim was deemed untimely. 15. On 21 September 2020, the DFAS U.S. Military Annuitant Pay Office concluded a further review of the applicant's claim for entitlement to the SBP annuity from the military retired pay account of the deceased retired SM. That office determined that even if she had applied for SBP benefits within 6 years of the retired SM's death, her claim would still be denied in full because the deceased retired SM did not request to change his election to "former spouse" coverage nor was a deemed election for "former spouse" coverage made by the applicant within 1 year of the divorce. 16. On 12 December 2021, the applicant became a patient of a hospice and palliative care facility. 17. On 26 May 2022, DOHA rendered a decision regarding the applicant's claim for entitlement to the SBP annuity established by the deceased retired SM. Her claim was disallowed for the following reasons: a. On 11 January 2001, the retired SM updated his designation of arrears of retired pay beneficiary information. He named his two daughters in equal shares. The RAS, 4 April 2001, reflects this change in the beneficiary information section. In the SBP coverage section of the same RAS, his SBP election is listed as "Spouse Only" coverage, and the applicant's date of birth is listed on the spouse date of birth line. The retired SM passed away on 30 December 2003. b. After submitting a DD Form 2656-7, DFAS issued two denial letters. (1) The first denial letter, 13 September 2019, denied her claim on the basis that her claim was not received within 6 years from the date it was accrued. (2) DFAS issued a second letter, 21 September 2019 (should read 2020), denying her claim on the basis that neither the applicant nor the retired SM requested "Former Spouse" SBP coverage within 1 year of their divorce. (3) DFAS did not address the retired SM's continued SBP premium payments or that DFAS Retired and Annuitant Pay was never informed of the divorce. DFAS Retired and Annuitant Pay was not aware of their divorce until the retired SM's death. At that time, DFAS changed the deceased retired SM's SBP status to reflect "No Benfy [No Beneficiary]" effective the date of divorce. c. Termination of the member's marriage prior to the member's death ends the spouse's eligibility to receive the SBP annuity as the surviving spouse, but the SBP may be paid to that person as the former spouse. Spousal SBP coverage ends upon divorce. If a member divorces and wishes to provide SBP coverage for his former spouse, the member must notify DFAS in writing of the divorce and his intention to provide coverage for his former spouse, even if the former spouse was the spousal beneficiary immediately before the divorce. "Former spouse" coverage must be established within 1 year of the member's divorce. The former spouse has 1 year from the date of the divorce to request a deemed election. d. The retired SM was obligated per their final divorce decree to cover the applicant as his "former spouse" under the SBP. However, he failed to establish "former spouse" coverage and the applicant did not file a timely deemed election. e. There is no evidence in the record of the retired SM submitting the final divorce decree within 1 year of their divorce, requesting "former spouse" SBP coverage for the applicant or that the applicant requested a deemed election. DFAS properly denied her claim for the SBP annuity on the basis that there was no evidence the retired SM ever elected "former spouse" SBP coverage for her within 1 year of their divorce or that she filed a deemed election within 1 year of their divorce. DOHA has no authority under the statute or regulation to allow the claim. 18. The applicant died on 13 September 2022. She was divorced at the time of her death. 19. The Defense Retiree and Annuitant Pay System does not have any SBP documents on file for the deceased retired SM nor did the DFAS correspondence address a refund of SBP premiums paid by the retired SM prior his death. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the SM's military records, the Board found relief is warranted. 2. The Board found the evidence confirms the retired SM’s intent to provide SBP coverage for his former spouse. The evidence further confirms that the required request to change the SBP beneficiary category was never submitted. The Board determined the retired SM’s record should be corrected to show he submitted a timely election for former spouse SBP coverage and the applicant—now her estate—should be paid SBP retroactive to the day after the SM’s death through the date of her own death. 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 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 he submitted an election for former spouse SBP coverage within one year of his divorce from the applicant. As a result of this correction, the applicant, now her estate, should be paid the SBP annuity retroactive to the day after the SM’s death through the date of her 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 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 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. 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) AR20220010219 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1