IN THE CASE OF: 

		BOARD DATE: 22 August 2022

		DOCKET NUMBER: AR20220002034


APPLICANT REQUESTS: in effect, correction of her ex-husband's, a retired service 
member (SM), records to show she submitted a DD Form 2656-10 (Survivor Benefit 
Plan (SBP) Former Spouse Request for Deemed Election) to change his SBP coverage 
to "Former Spouse" within 1 year of their divorce in accordance with their divorce 
decree.

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, 7 October 2021
*	Circuit Court Decree a (from the bonds of matrimony) (aka Final Divorce Decree) 
with allied documents, 16 August 2013

FACTS:

1.  The applicant, the former spouse of a retired SM, states she is not listed as the 
beneficiary of her ex-husband's SBP as required by the divorce documents filed in 
court. She was unaware of the option to submit a deemed election within 1 year of 
divorce and attempted to correct the situation by submitting the necessary paperwork to 
the Defense Finance and Accounting Service (DFAS) (i.e., the divorce decree and 
DD Form 2656-10).

2.  Following prior enlisted service, the SM was commissioned as an officer in the 
Regular Army on 21 April 1994. He was promoted to the rank/grade of major/O-4 
effective 1 October 2004.

3.  The SM's DD Form 2656 (Data for Payment of Retired Personnel), 20 July 2011, 
shows in:

	a.  Section VIII (Dependency Information), the name of his spouse as with a 
marriage date of and he had two dependent daughters;

	b.  Section IX (SBP Election), block 26 (Beneficiary Category(ies)), he placed an "X" 
in the box by the statement: "I elect not to participate in SBP" and an "X" by the 
statement "I do have eligible dependents under the plan";

	c.  Section X (Certification), block 30 (Member), he signed the form on 20 July 2011 
and his signature was witnessed at, on the same date; and

	d.  Section XII (SBP's Spouse Concurrence) is blank.

4.  He retired on 31 October 2011 in the rank/grade of major/O-4. His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 17 years, 
6 months, and 10 days of net active service during this period and 3 years, 5 months, 
and 26 days of prior active service.

5.  The Circuit Court Decree a Vinculo Matrimonii, 16 August 2013, with Stipulation and 
Agreement, 28 June 2013, provided the applicant entitlement to the retired SM's SBP 
under appropriate statutory guidance. In particular, it noted:

Wife/Spouseshall be deemed as the irrevocable beneficiary of the survivor's benefit 
plan (SBP) through Husband/Member's military retirement as the former spouse of 
Husband/Member, and Husband/Member shall execute such paperwork as is 
required to make or extend the election of Wife/Spouse as said beneficiary, and 
shall do nothing to reduce or eliminate that benefit to Wife/Spouse. 
Husband/Member shall elect the former spouse-only option and shall select as the 
amount the gross amount of monthly retired pay.

6.  The electronic mail correspondence with a DFAS pay technician, 15 July 2022, notes 
the SM's DD Form 2656 did not have spousal concurrence to decline SBP coverage 
and his retired pay therefore had automatic SBP coverage as required by law. The 
DFAS pay technician further noted the DFAS database contains the following 
documents:

	a.  the SM's DD Form 2656, 20 July 2011, showing he elected not to participate in 
the SBP and did not contain his spouse's concurrence;

	b.  a DFAS letter to the applicant, 11 September 2013, noting the requirements of 
retired pay and designation as a former spouse beneficiary for SBP in accordance with 
a divorce decree;

	c.  a letter from the applicant to DFAS, 26 January 2021, noting her divorce and the 
necessary documents requiring submission within 1 year of divorce, as well as a 
completed DD Form 2656-10;

	d.  a DD Form 2656-10, 26 January 2021, showing in:

		(1)  Section I (Member Identification), the SM's name;

		(2)  Section II (Former Spouse Identification), the applicant's name, address, and 
birthdate;

		(3)  Section II, block 12 (Marriage History), the entries:

*	Date Married to Member   
*	Date of Divorce   16 August 2013
*	Are You Currently Married   "No"

		(4)  Section III (Authority to Request Deemed SBP Election), she answered "Yes" 
to the following questions:

*	Is election made pursuant to requirements of a court order?
*	Is election being made pursuant to written agreement as part of or incident to 
a proceeding of divorce, dissolution, or annulment that has been incorporated 
in, ratified, or approved by a court order?

		(5)  Section IV (Dependent Children Information), block 15 (Was Child Coverage 
Also Court-Ordered or Required by a Written Agreement?), she placed an "X" in the 
"Yes" block;

		(6)  Section IV, block 16 (List Dependent Children Required to be Covered by 
Court Order/Written Agreement), she listed a daughter and

		(7)  Section V (Former Spouse Signature), she signed the form on 26 January 
2021;

	e.  all court divorce documents;

	f.  the DFAS letter, 24 June 2021, informing her that her request to deem an election 
of SBP could not be processed because it was received more than 1 year after receipt 
of the court order; and

	g.  the letter from the applicant to DFAS, 29 September 2021, appealing the DFAS 
denial for former spouse SBP designation.

?
BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was not warranted. The applicant's contentions, the SM's military records, and 
regulatory guidance were carefully considered.  Based upon the available 
documentation, the Board found:

a)	While the applicant contends she did not receive a notification from DFAS that, in 
the event the FSM did not elect former spouse coverage, she could deem an 
election within one year of the court order, in a letter from DFAS, dated 11 
September 2013, the applicant was informed that  if your divorce decree 
specifies that you are to be designated as a former spouse beneficiary for the 
[SBP], you must make a  deemed election  for SBP coverage within one year of 
the date of your divorce or other court order requiring SBP coverage . . . .  The 
applicant was on notice within one month of the court order that she could deem 
a former spouse SBP election. 
b)	The applicant has not provided any documentation reflecting the FSM remains 
unmarried. 

2.  Based upon these findings, the Board concluded there was insufficient evidence of 
an error or injustice warranting a change to the FSM s SBP coverage.

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, enacted 21 September 1972, established the SBP. The SBP 
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. An election, once 
made, was irrevocable except in certain circumstances. Elections are made by 
category, not by name. The election must be made before the effective date of 
retirement or coverage defaults to automatic spouse coverage. Since its creation, it has 
been subjected to a number of substantial legislative changes.

2.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 
8 September 1982, established SBP coverage for former spouses of retiring members. 
Public Law 98-94, dated 24 September 1983, established former spouse coverage for 
retired members.

3.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required 
written concurrence by the spouse in a member's decision to decline the SBP or elect 
spouse coverage at less than the full base amount.

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, required notice to a spouse if a member elected 
not to participate in the SBP. The statute also provided for automatic enrollment for 
spouse coverage at the full base amount unless a member affirmatively declined to 
participate in the SBP prior to receiving retired pay.

6.  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 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.

7.  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.

8.  Title 10, U.S. Code, section 1454 (Correction of Administrative Errors), states the 
Secretary concerned may, under regulations prescribed under section 1455 of this title, 
correct or revoke any election under this subchapter when the Secretary considers it 
necessary to correct an administrative error.

9.  Title 10, U.S. Code, section 1552 (Correction of Military Records: Claims Incident 
Thereto), states the Secretary of a Military Department may correct any military record 
of the Secretary's Department when the Secretary considers it necessary to correct an 
error or remove an injustice. Such corrections shall be made by the Secretary acting 
through boards of civilians of the executive part of that Military Department.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220002034


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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