IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220006785 APPLICANT REQUESTS: entitlement to the Survivor Benefit Plan (SBP) annuity, based on the death of her former husband, a former service member (FSM). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), * DA Form 4240 (Data for Payment of Retired Personnel), 15 July 1982 * Applicant and FSM Marriage Certificate, * Applicant and FSM Divorce Decree from the FSM, * Applicant’s marriage certificate, * FSM’s Death certificate, FACTS: 1. The applicant states this application may not be a correction but a decision that was court-ordered and being overturned. She was not aware that she had to do anything after she signed the divorce papers from the FSM. She asked if she needed to do anything else and was told no, the service member would file the paperwork with DFAS (Defense Finance and Accounting Service). When she started getting the alimony, she assumed everything was fine. When she got the denial 1letter, she was going to drop the whole thing until she saw on the news of all the illegals pouring across the border and being housed, given an allowance, medical treatment, and education for free. They never did one thing for this country. Her spouse (i.e., former husband, the FSM), spouse served our country for 20 years and she has to beg for what the judge says belongs to her. It was agreed by her and the servicemember that he would pay $400.00 per month alimony (which he did) and upon his death, she would receive SBP. It was so ordered and signed by the judge. Thinking the justice system is correct, no more was done. In August 2021 service member passed. She sent all the necessary paperwork to DFAS but was denied. 2. Review of the FSM’s service records shows: a. The FSM was born in. He and the applicant were married on 5 May 1962. b. The FSM initially entered military service on 1 September 1962. He held military occupational specialties in the areas of finance, administration, and human resources. He attained the rank of first sergeant. c. On 15 July 1982, in connection with his request for retirement, he completed a DA Form 4240 (Data for Payment of Retired Personnel) in which he indicated he was married to the applicant, and they had dependent children. He elected spouse SBP coverage based on a reduced amount of $300. His spouse (the applicant) concurred with his election after having been informed and counseled of her options. d. The FSM retired on 30 September 1982, and he was placed on the retired list on 1 October 1982. His DD Form 214 shows credit of over 20 years of active service. e. On 22 August 1988, the applicant and FSM were divorced. Their divorce decree addresses payment of a $400 by the FSM to the applicant. It also states, “Husband agrees that his Survivor Benefit Plan (SBP) that is in effect at present, shall remain as is, and not be altered in any way from its present for or content.” f. There is no indication the FSM changed his SBP election from “spouse” to “former spouse” coverage within one year of his divorce. g. Likewise, there is no indication the applicant deemed the election within one year of her divorce from the FSM. h. The applicant remarried on 13 June 1990. She provides a marriage license reflective of her remarriage. i. The FSM died on 15 August 2021. His death certificate show she was married at the time of death and the widow’s name is listed as j. The applicant does not provide any correspondence reflective of her claim to the SBP annuity or correspondence reflective of why she was denied. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. A spouse loses eligibility as an SBP beneficiary upon divorce. There is no provision in the SBP which makes former spouse coverage an automatic benefit. The only means by which the divorced spouse may receive a survivorship annuity is if former spouse coverage is elected. A court order by itself cannot be used to institute coverage. Under Federal law, a signed election request must be received before action can be taken to establish former spouse election. The law allows a former spouse to request a deemed election. Coverage may also be deemed if the retiree has been ordered by the court to make a former spouse election. Under Federal law, a request for deemed election must be received from the former spouse within 1 year from the date of the court decree that awards the coverage. A former spouse may request to deem an election before the end of the 1-year period in which the retiree is allowed to make an election. b. SBP elections are made by category, not by name. Since SBP elections are made by category, not by name, once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary. In the event of his death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death – his spouse (now widow), not his former spouse, if they have been married for at least 1 year. Notwithstanding the applicant's sincerity, the Board may not correct the FSM's records to effect a change of his SBP election to former spouse coverage, for doing so would deprive his current spouse (widow) of a property interest without due process of law. The Board would accept a request for reconsideration if accompanied by a signed, notarized declaration from the FSM's current widow renouncing or relinquishing any interest in the SBP annuity or a court order from a state of competent jurisdiction wherein the current widow was a party, divesting the current spouse of her interest in the SBP. 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. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses. 3. Public Law 99-661, dated 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 on active duty and had not yet made an SBP election. 4. 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. 5. 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) AR20220006785 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1