IN THE CASE OF: BOARD DATE: 1 March 2023 DOCKET NUMBER: AR20220003033 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 divorce * retroactive payments of SBP annuity 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) * five DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending – * 28 March 1964 * 26 November 1968 * 16 December 1974 * 22 January 1979 * 30 April 1981 * Certificate of Marriage, 11 June 1965 * DA Form 4240 (Data for Payment of Retired Army Personnel), 28 April 1981 * Sixth Judicial District Court Decree of Divorce, 25 October 1991 * DD Form 215 (Correction to DD Form 214) for the period ending 30 April 1981, 11 June 2001 * Army Review Boards Agency Letter, 11 June 2001 * two Retiree Account Statements, 15 December 2010 and 29 January 2011 * Certificate of Death, 11 February 2013 * two Letters from Applicant's Daughter to the Defense Finance and Accounting Service (DFAS) Retirement and Annuitant Pay Office, 6 June 2021 and 22 October 2021 * Army Review Boards Agency Letter, 26 October 2021 * DD Form 2656-10 (SBP Former Spouse Request for Deemed Election), 26 October 2021 * two Domestic Mail Return Receipts, 18 January 2022 and 2 November 2021 * Email from Congressional Representative Liaison to the Army Review Boards Agency, 30 March 2022 * Congressional General Privacy Release Form, 23 February 2022 FACTS: 1. The applicant, the former spouse of the deceased retired service member (SM), states: a. She was not notified by the Army, DFAS, or her ex-husband prior to his death, that a deemed election must be filed for survivor benefits. Her ex-husband did not fulfill his obligation to change his SBP election to "former spouse" or provide instructions and forms to her as specified in the divorce decree. b. She requests a waiver of the 1-year time limit for filing a deemed election and retroactive payments for survivor benefits. 2. On 11 June 1965, the SM married the applicant, 3. On 28 April 1981, the SM completed DA Form 4240. The applicant is listed as his spouse. He elected "spouse only" SBP coverage at the reduced amount of $500.00. The DA Form 4240 is properly signed, dated, and witnessed. Page 2, which contains the SBP Certificates, is required to be completed when the married member does not elect full coverage for his/her spouse, was not provided by the applicant. The SM's records contain an incomplete copy of the DA Form 4240 showing the applicant signed the form indicating she understood the SM's decision regarding the SBP. The signature of the counselor is missing. 4. On 30 April 1981, the SM retired from active duty. 5. On 25 October 1991, the SM and the applicant divorced. Their divorce decree stated the SM was ordered to continue to have $25.00 per month deducted from his retired pay for a survivor's benefit and to allow the applicant to keep the benefits should she survive him. The SM was ordered to provide any special forms necessary so the applicant could obtain the survivor's benefit. 6. The SM's Retiree Account Statements for 15 December 2010 and 29 January 2011 show the SM made payments toward his "spouse only" coverage SBP. The statements reflect the applicant's date of birth as his spouse's date of birth as shown on his DA Form 4240. 7. On 6 February 2013, the SM died. He was divorced at the time of his death.? 8. On 27 August 2013, the DFAS Retired and Annuitant Pay Office rendered a letter to the applicant stating that after reviewing the deceased retired SM's account, they determined she was not entitled to receive an annuity under the SBP. DFAS further stated: a. SBP gives retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors. Upon retirement, the SM elected to cover the applicant under the SBP. However, a spouse loses eligibility as a spouse beneficiary upon divorce. Retirees have the option to change their "spouse" coverage to "former spouse" coverage upon divorce. For this to become effective, DFAS must receive a request from the retiree within 1 year of the divorce. b. If the retiree and the former spouse sign an agreement to continue SBP with "former spouse" coverage, and a qualified court order incorporates, ratifies, or approves the agreement, the former spouse may request a deemed election for "former spouse" coverage if the retiree fails to elect coverage. The request for a deemed "former spouse" election must be received within 1 year of the divorce. A divorce decree alone does not constitute a deemed election. c. Her former spouse did not make a request to change his election to "former spouse" coverage nor was a deemed election for "former spouse" coverage made by her. 9. On 6 June 2021 and 22 October 2021, the applicant's daughter wrote letters to DFAS on her behalf. On 26 October 2021, she rendered a letter to the Army Review Boards Agency, providing the same information. She stated the deceased retired SM was ordered by the court as part of the divorce decree to continue his SBP pay deductions, thus allowing the applicant to receive survivor benefits upon his death. She further stated: a. Her mother does not recall receiving notice from DFAS on the need to file a deemed election for her survivor benefits. b. Her mother was hospitalized after her divorce and the death of the SM. She continues to suffer from ongoing depression and other medical conditions. c. English is not her mother's primary language. She would not have been able to understand and reply to a notice from DFAS that required a submission of a deemed election for benefits. d. Subsequent attempts by her mother to inquire about her survivor benefits from Department of Defense agencies resulted in misinformation and confusion, which was aggravated by her language barrier. Her mother stated she was informed "she was no longer married to SFC [Sergeant First Class] and not entitled to benefits." 10. On 26 October 2021, the applicant completed a DD Form 2656-10 wherein she listed herself as the deceased retired SM's former spouse. However, her date of birth is different than her date of birth shown on the deceased retired SM's Retiree Account Statements and DA Form 4240. The SBP election was made pursuant to requirements of a court order. The applicant properly signed the DD Form 2656-10. 11. On 11 March 2022, DFAS rendered a letter to the applicant's Congressional representative wherein 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 to be the eligible former spouse SBP beneficiary. c. Upon separation from the Army on 1 May 1981, the SM elected "spouse" SBP coverage for the individual he was married to at retirement and later divorced on 25 October 1991. d. DFAS did not receive the necessary documents from either the SM or the applicant after their divorce to elect or deem an SBP "former spouse" election. e. On 27 August 2013, DFAS mailed an incorrect denial letter to the applicant that did not include the Defense Office of Hearings and Appeals (DOHA) information. f. DFAS mailed the applicant a new DOHA denial letter on 9 March 2022, explaining "former spouse" deemed elections and the method to appeal the denial decision. The applicant has 30 days from the date of the letter to file a claim for the SBP annuity through the DOHA. 12. The SM's records do not contain a DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) completed within 1 year of his divorce. ? BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the FSM's military records, the Board found that relief was 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 public law, policy and regulation. Upon review of the applicant’s petition and the available FSM’s military records, the Board determined in the divorce decree, the deceased retired service member agreed to maintain SBP for the applicant. He continued to pay spouse SBP premiums for many years after the divorce. The Board agreed, given he was divorced at the time of his death, this appears to have been an attempt to maintain SBP coverage for his former spouse. However, the Board determined FSM did not make the required election for former spouse coverage within one year of the divorce. Nor did the applicant deem an election during that period. Based on the preponderance of evidence the Board granted relief the correct the record to show a timely election for former spouse SBP coverage within one year of the divorce. 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 that the evidence presented was 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 the former service member submitted his DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage) completed within 1 year of his divorce and it was received in a timely manner. 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) AR20220003033 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1