IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011417 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. 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) * Divorce Decree Translation * Divorce Decree (German), 20 May 2016 * Certificate of Translation, 11 April 2018 FACTS: 1. The applicant, the former spouse of the deceased retired service member (SM), states her ex-husband's records should be corrected to allow her to receive an annuity under the SBP. The Defense Finance and Accounting Service (DFAS) failed to notify her ex-husband that a DD Form 2656-6 (SBP Election Change Certificate) was required following submission of his DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) along with their divorce decree. a. Upon retirement, her then-husband elected "Spouse Only" SBP coverage as they were still married. In 2018, her ex-husband submitted a DD Form 2656-1 to DFAS for "Former Spouse" SBP coverage along with their divorce decree. b. On 15 July 2022, DFAS advised her that she was not entitled to an annuity as her ex-husband did not submit a DD Form 2656-6 along with his DD Form 2656-1 and their divorce decree. The DD Form 2656-6 states: "A member with spouse coverage who divorces, and does not elect former spouse coverage is automatically in a suspended coverage status. To elect spouse coverage, submit DD Form 2656-1 – Former Spouse Election Certificate." c. DFAS also advised her that she did not submit a DD Form 2656-10 (SBP/ Reserve Component SBP Request for Deemed Election). Per DFAS rules, to continue SBP coverage for a former spouse, either the retiree must voluntarily request continuation of coverage for a former spouse or the former spouse must request the coverage. As of the date of her application to the Board, DFAS has failed to provide copies of any correspondence or answer whether they sent correspondence to her ex-husband requesting submission of a DD Form 2656-6, as it was also required to complete the change to "Former Spouse" SBP coverage. d. It was her ex-husband's intention to change the SBP coverage from "Spouse Only" to "Former Spouse" upon their divorce as evidenced by his submission of the DD Form 2656-1 and their divorce decree to DFAS. 2. On 11 July 2008, the SM married the applicant, . The marriage certificate is presented in German and is not translated. 3. The Defense Retiree and Annuitant Pay System shows the SM submitted a DD Form 2656 (Data for Payment of Retired Personnel) on 30 June 2014. The SM listed the applicant as his spouse with no dependent children. The form further shows the SM elected "Spouse Only" SBP coverage at full gross pay. The DD Form 2656 was signed and dated by the SM and a witness. 4. On 31 August 2014, the SM retired from active duty. 5. On 20 May 2016, the applicant and the retired SM divorced. Their translated divorce decree does not address the SBP. 6. The Defense Retiree and Annuitant Pay System shows the retired SM completed a DD Form 2656-6 on 19 April 2018. The form shows the retired SM change his election from "Spouse and Child" coverage to "Spouse Only" coverage at full retired pay as a result of divorce and notes: "DIVORCE. A member with spouse coverage who divorces, AND who does not elect former spouse coverage, is automatically in a "Suspended Coverage" status. To elect former spouse coverage, submit DD Form 2656-1, "Former Spouse Election Certificate." The retired SM listed the applicant as his spouse and his two dependent children. The DD Form 2656-6 is signed and dated by the applicant and a witness who is also a notary public. 7. On 9 June 2020, the retired SM was found deceased. His death certificate shows he was divorced at the time of his death and lists the applicant as the informant. 8. The Defense Retiree and Annuitant Pay System shows DFAS rendered a letter to the deceased retired SM's son on 27 January 2021 in response to his correspondence concerning his late father's SBP. The SM's son's claim was denied in full. DFAS records indicate the SM elected coverage for his spouse only at the time of his retirement. Since there was no election of child coverage, his children are not entitled to receive SBP benefits. 9. The Defense Retiree and Annuitant Pay System shows DFAS rendered a letter to the applicant's congressional representative on 15 July 2022 in response to his inquiry on behalf of the applicant pertaining to her request for an SBP annuity as a former spouse. The letter states that neither the retired SM nor the applicant elected or deemed former spouse coverage within 1 year of their divorces. Therefore, no annuity is payable to the applicant from the deceased retired SM's military retired pay account. 10. The Defense Retiree and Annuitant Pay System shows DFAS rendered a letter to Mr. on 6 February 2023 in response to his inquiry on behalf of the applicant pertaining to the applicant's and her son's entitlement to an SBP annuity from the deceased retired SM's military pay account. The letter states: a. DFAS explained that the retired SM did not elect "Former Spouse" coverage and the applicant did not deem the election for "Former Spouse" coverage within 1 year of their divorce. Therefore, she is not entitled to an SBP annuity as a former spouse of the deceased retired SM. b. DFAS does not have a policy that states DFAS must advise a member to submit a DD Form 2656-1 once the member notifies DFAS of divorce. It is up to the member to submit the required forms. A DD Form 2656-1 must be received within 1 year of the final divorce date. The retired SM did not advise DFAS of the divorce until 25 April 2018, which is after the 1-year anniversary of the divorce. Therefore, had he submitted a DD Form 2656-1, it would have been invalid in 2018. c. DFAS audited the deceased retired SM's military retired pay account, along with the documentation regarding the SBP annuity, and determined his children are ineligible as his original election for SBP indicated he elected "Spouse Only" coverage at the time of retirement. 11. In response to an inquiry, a DFAS pay technician stated DFAS is unable to provide copies of the SM's retiree account statements once a member's retired pay account has been closed and finalized. DFAS did not indicate whether the SM was paying SBP premiums at the time of 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 that relief was not warranted. The Board carefully considered the applicant's request, the former service members record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicants petition and available military records for the FSM, the Board determined there is insufficient evidence to support the applicant’s claim for relief. The Board determined the FSM had a genuine intention to select the applicant, and the FSM’s former spouse as his SBP beneficiary in April 2018. However, the Board determined the FSM used the wrong form (he used a DD Form 2656-6 instead of a DD Form 2656-1); incorrectly identified the applicant as his “spouse” instead of “former spouse”; and missed the one-year post divorce deadline by about 11 months. 2. The Board noted the FSM’s intention to designate his former spouse as his SBP beneficiary. This intention is made clear in his 19 April 2018 DD Form 2656-6. The FSM’s signature appears authentic because it is witnessed by a notary. However, the Board determined the FSM did not meet the required DFAS time of 1 year, based on this, the Board denied 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 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 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. 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) AR20220011417 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1