IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220003472 APPLICANT REQUESTS: in effect, the records of her deceased former husband, a former service member (FSM) be corrected to show she deemed the Survivor Benefit Plan (SBP) coverage within one year of her divorce and payment of the SBP annuity based on his death. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Affidavit for Judgment for Dissolution of Marriage, 23 November 2015 * Statement Regarding DOHA Claim * August 1973 Marriage Certificate * 1975 DD Form 214, Report of Separation from Active Duty * Marital Settlement and Separation Agreement, 23 November 2015 * Judgment and Decree of Dissolution of Marriage, 2 December 2015 * FSM’s Certificate of Death, 23 June 2019 FACTS: 1. The applicant states her former husband elected her to be the beneficiary of his SBP while in service and at the mutual signing of their divorce decree. He called DFAS (Defense Finance and Accounting Service) at the time of that signing to reiterate his desire for her to remain the beneficiary. Both of their attorneys were there during that call. Her former husband failed to provide her with the DFAS form for final signature due to his declining health and advanced age. She submitted the same form with the divorce decree to DFAS after receiving the same. She is 72 years of age, and she is a disabled veteran with social security as the only income. 2. Review of the FSM’s service records shows: a. The FSM was born in 1934. He was commissioned from the U.S. Navy Officer Candidate School on 1 November 1957. b. He applied for an inter-service transfer from the U.S. Navy to the U.S. Army and transferred on 8 December 1960. c. He submitted an Application for Appointment as a commissioned officer in the Regular Army on 20 December 1960. His DA Form 61 (Application for Appointment) indicated he was married. Details of this marriage are not available. d. He was appointed as a Regular Army second lieutenant on 13 December 1961. He served in a variety of assignments and attained the grade of major (MAJ). e. The FSM and the applicant were married on 25 August 1973. f. The FSM retired on 31 July 1977, and he was placed on the retired list in the rank of MAJ on 1 August 1977. There is no SBP election in his service record and DFAS confirmed their office does not have a contemporaneous election. 3. The FSM and applicant signed a Marital Settlement and Separation Agreement on 23 November 2015. Page 3 states “[Applicant] shall also be awarded former spouse coverage under the Survivor Benefit Plan with [FSM’s] retired pay.” Page 4 states “It is the intent of the parties that the terms of this Agreement be incorporated and fully set forth in any Judgment and Decree of Dissolution of marriage entered by the court.” 4. On 1 December 2015, the FSM and applicant were divorced. Their divorce decree states in paragraphs 8 and 9 respectively, “The terms of the Marital Settlement and Separation Agreement as included and attached to the Affidavits of Dissolution entered into by the parties, attached hereto as Exhibit "1" and filed with the court, are fair and reasonable and not unconscionable and should be approved by the court and [Applicant] shall also be awarded former spouse coverage under the Survivor Benefit Plan, with [FSM’s] retired pay as the base amount.” 5. On or about 17 December 2015, DFAS received a DD Form 2656-10 (SBP Deemed Election), dated 16 December 2015, from the applicant. The form states: * she is unmarried * her request is made pursuant to requirements of a court-order * the election is made pursuant to a written agreement previously entered into voluntarily as part of their divorce * the written agreement was incorporated in, ratified, or approved by a court-order 6. On 1 February 2018, DFAS informed the applicant that her attempt to deem an election of Survivor Benefit Plan (SBP) former spouse coverage cannot be processed because her application to deem the election was received more than one year after the receipt of your court order. A spouse loses eligibility as a SBP spouse beneficiary upon divorce. There is no provision that makes former spouse coverage an automatic benefit. The only means by which the divorced spouse can become an SBP beneficiary is if former spouse coverage is elected by the service member, or a deemed election is made by a former spouse on the basis of a court order. A court order by itself cannot be used to institute coverage. An election can be deemed on the basis of a court order or court-approved agreement by the former spouse or the former spouse’s attorney. The request must be received along with a DD Form 2656-10 within one year of the date of the original court order that awarded the coverage. 7. DFAS confirmed by email on 6 March 2023 that: * the former spouse deemed election in 2015 did not provide a copy of the divorce decree at the time she requested a deemed election, and letter was sent in 2015 advising her of this * No documents were received until 2018 when she sent in a request for a deemed election and the divorce decree. * DFAS does not have an election made by the FSM at retirement, he possibly made a subsequent election during an Open Season * the FSM paid SBP premiums * the FSM did not change his election to former spouse upon divorce * DFAS sent a denial letter to the applicant; the applicant appealed to DOHA; her appeal was denied 8. The FSM died on 25 June 2019. His Certificate of Death states he was divorced. It also states the informant is and her relationship to the deceased as “Significant.” 6. Although not available, it appears the applicant contacted DFAS regarding the SBP annuity after the FSM’s death. It also appears DFAS denied her request and that she appealed the denial to DOHA (Defense Office Hearing and Appeals). 7. The applicant provides a statement, 26 March 2022, from an attorney addressed to the Board, regarding DOHA Claim [Number]. The letter states: a. This letter is in support of [Applicant’s] request for review of the denial of annuity benefits under the SBP. The attached Marital Settlement and Separation Agreement was drafted after settlement discussions that took place on November 23, 2015. [Applicant's] recollection of the timeframe is slightly different as she stated in her letter that it was December 1, 2015, however, the document and his records show that the parties and attorneys met on November 23, 2015, from 11:40 am until 1:23 pm. b. During this time, [Applicant’s] SBP was discussed. He said that he had added [Applicant] as the beneficiary of his SBP and had taken care of that years ago shortly after they married. He (the attorney) asked if he could call DFAS to confirm that he had done so. He then called DFAS and put the phone on speaker and went through the prompts and ultimately someone from DFAS confirmed that there was SBP coverage for [Applicant]. This interaction sticks out because the FSM was somewhat hostile which is why [Applicant] was in a separate room during the call. At that time, the parties could not be in the same room due to FSM’s comments towards the applicant. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board found that if the applicant had submitted a request for a deemed election of former spouse coverage in a timely manner with all required documentation, her request would have been approved. Based on a preponderance of the evidence, the Board determined the record should be corrected to show she submitted a timely request for a deemed SBP election for former spouse coverage. 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 the applicant submitted a request for a deemed election of former spouse SBP coverage within one year of 1 December 2015. The applicant should be paid any monies she is due as a result of this correction retroactive to 26 June 2019. 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) AR20220003472 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1