ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20220003684 APPLICANT REQUESTS: correction of her former husband's records, a retired service member (SM), to show her entitlement to receipt of his Survivor Benefit Plan (SBP) annuity. 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) * Defense Finance and Accounting Service (DFAS) Letter, 9 August 2021 * DFAS Letter, 28 September 2021 FACTS: 1. The applicant, the former spouse of the retired SM, states she was awarded the SBP in their divorce proceedings. Due to restrictions during the Coronavirus Disease 2019 pandemic, she was not given important information to timely submit a change of election statement from "Spouse" to "Former Spouse." Upon receiving the information, she submitted her application to DFAS, but it was denied. Since their divorce, payment of her portion of his retired pay has continued; the SBP coverage should also be honored. 2. The SM and the applicant, married on 26 April 1991. 3. On 22 August 2018, the SM was serving in the Regular Army in the rank/grade of sergeant major/E-9. 4. His DD Form 2656 (Data for Payment of Retired Personnel), 22 August 2018, shows in: * item 3 (Retirement/Transfer Date) – 28 October 2018 * item 22a (Spouse) – * item 22c (Date of Marriage) – 26 April 1991 * item 25 (Dependent Children) – name of one child * item 26 (SBP Beneficiary Categories) – "I Elect Coverage for Spouse Only" and "I Do have Dependent Children" are marked * item 27 (SBP Level of Coverage) – "I Elect Coverage Based on Full Gross Pay" is marked * item 39c (Member – Date Signed) – * 22 August 2018 * notes – "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred." * item 31 (Witness – Date Signed) – is signed by an SBP Counselor, 22 August 2018 5. On 27 October 2018, the SM retired by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL). 6. The County Circuit Court Marital Dissolution Agreement, 29 May 2020, provides that: * the applicant shall receive the sum of $1,000.00 of the SM's military retired pay * the applicant, from her $1,000.00 per month, shall pay half of the cost of the SBP, which the SM shall maintain for her * the applicant shall receive her first retirement payment in June 2020, which is the first month following the end of the SM's child support obligation * should the SM's military retired pay be reclassified in any way that reduces the retired pay to an amount that would reduce the applicant's payment, the SM shall be obligated to pay the difference from some other source so that the applicant's payment is not reduced from $1,000.00 per month 7. On 15 July 2020, the SM and the applicant divorced. The County Circuit Court Final Decree of Divorce provides that the Marital Dissolution Agreement is affirmed, approved, and ratified by the Court and is incorporated as a part of the Decree. Each party is bound to obey the provision in every respect. 8. U.S. Army Physical Disability Agency Order D055-41, 24 February 2021, removed the SM from the TDRL because of permanent physical disability and placed him on the Permanent Disability Retired List with a disability rating of 100 percent. 9. The DFAS letter, 28 September 2021, informed the applicant that her request for an SBP deemed election was denied. The court order submitted must be received within 1 year of being issued by the court. Therefore, DFAS is unable to honor her request since the date they received her deemed election is more than 1 year after the court order was filed. 10. The DFAS email (SM), 2 August 2022, states the SM's DFAS records do not contain a DD Form 2656-10 (SBP Former Spouse Request for Deemed Election) or DD Form 2656-1 (SBP Election Statement for Former Spouse Coverage). The SM was not ordered to cover the former spouse, nor did he make a voluntary election. The former spouse was removed from SBP coverage when DFAS received the divorce decree on 9 August 2021. 11. The SM's DFAS records show he has no dependents effective 15 July 2020. 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 clearly shows intent for the applicant to be the beneficiary of the SM’s SBP, and the Board found no barriers to correcting the record to effect relief in this case. Based on a preponderance of the evidence, the Board determined the record should be corrected to show the applicant submitted an application for a deemed former spouse SBP election within one year of her divorce from the SM. 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 an application for a deemed former spouse SBP election prior to 14 July 2021. 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. Title 10, U.S. Code, section 1448, provides the general rules for participation in the SBP. A married person who is eligible to provide a standard annuity may not elect to not participate in the plan or to provide a spouse annuity at less than the maximum level without the concurrence of the person's spouse. A standard annuity election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. 2. 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. 3. 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 member is received within 1 year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003684 1 1