IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007088 APPLICANT REQUESTS: * correction of her former husband's records to show he elected Survivor Benefit Plan (SBP) former spouse coverage * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Memorandum (Denial of SBP Annuity), 12 March 2020 * Defense Finance and Accounting Service (DFAS) Letter, 7 July 2020 * Letter of Appeal, 22 July 2020 * Defense Office of Hearing and Appeals (DOHA) Letter, 24 February 2021 * DFAS Retired and Annuitant Pay Letter, 1 March 2021 * U.S. Special Operations Command Letter, 20 September 2021 FACTS: 1. The applicant, the former spouse of the deceased retired service member (SM), states, in effect, she should be the named beneficiary of her ex-husband's SBP. The proper steps were not taken by her ex-husband to transfer his SBP coverage from "spouse" to "former spouse" due to lack of awareness or knowledge. It is reasonable to assume that he intended for the coverage for her to continue, considering that he did not stop making SBP payments or denote a new beneficiary. To deny a veteran's intended support for his former spouse and children is a severe injustice for a technicality that is not widely known. a. She divorced her husband on 2 April 2015 after 17 years of marriage. She was not made aware by DFAS, following receipt of the divorce decree, or by her attorney that she was required to deem an election concerning the division of her ex-husband's retired pay. Her ex-husband died on 19 October 2019 and she subsequently completed the necessary forms to collect the SBP annuities. She received a notice months later that she was not eligible for the SBP annuity because the election was never changed from "spouse" coverage to "former spouse" coverage. b. She was left shocked and devastated because she was not in the best financial position and she always knew she would receive survivor benefits in the event of her ex-husband's death. She and her then-husband were informed at the 2013 SBP briefing in connection with his retirement that once the SBP documents were signed, the SBP would not change without her written consent or the written consent of the SM, even in the case of divorce or death. The SBP was not addressed in the divorce decree because they were misinformed and neither she nor her ex-husband ever signed or agreed to a change in the SBP coverage. Additionally, DFAS continued to deduct SBP premiums from her ex-husband's retired pay. c. She disagrees with the decision to deny her survivor benefits as it was her ex-husband's intent for the benefits to be provided to her and their two sons. Neither of them was aware of the additional steps required and she is requesting payment of the SBP annuities. She understands rules are in place for a reason, but there should be exceptions in cases where the intent of both parties and the court was for the former spouse to be covered under the SBP Program. She SBP premiums were paid in a timely manner with no changes. 2. On the SM married the applicant (maiden name unknown). 3. On 31 December 1997, the SM enlisted in the Regular Army. 4. On a child was born to the SM and the applicant. 5. On another child was born to the SM and the applicant. 6. Documentation provided by DFAS shows the SM completed a DD Form 2656 (Data for Payment of Retired Personnel) on 28 August 2013. The SM indicated he was married and had dependent children. The SM elected full coverage for "Spouse Only." The DD Form 2656 was signed by the SM and properly witnessed. This DD Form 2656 is the only document on file for the SM at DFAS. 7. On 17 October 2013, the SM retired. 8. On 2 April 2015, the retired SM and the applicant divorced. The divorce decree does not address the SBP. 9. On 5 June 2015, the retired SM married 10. On 19 October 2019, the retired SM died. The death certificate shows he was married to at the time of his death. 11. In a letter to the applicant, 7 July 2020, the DFAS Retired and Annuitant Pay Office stated that after reviewing the former SM's account, DFAS determined the applicant was not entitled to receive an annuity under the SBP and denied her claim in full. 12. On 22 July 2020, the applicant appealed the decision, stating the Warrior Transition Unit was relatively new during the time she and her former spouse completed the "final paperwork." They both agreed to sign up for the SBP and were informed that once she was placed on the "plan," she could not be removed without her consent. The divorce was finalized over 2 years later and neither she nor her ex-husband were notified that a change had to made from spouse to former spouse coverage. She believes that if he did not want her as the beneficiary, he would have stopped paying SBP premiums. 13. On 24 February 2021, DOHA considered the applicant's appeal and concluded that DFAS properly followed the applicable laws, regulations, and instructions. The DOHA Claims Division recommended denial of the applicant's claim. 14. On 1 March 2021, DFAS notified the applicant of denial of her claim for survivor benefits and informed her of the process for appeal. 15. The letter from the U.S. Special Operations Command Recovery Care Coordinator to the applicant's Congressional representative, 20 September 2021, confirmed the applicant and the SM were in good standing when they elected to enroll in the SBP. The applicant is listed as the beneficiary. The SM was assigned to the Warrior Transition Unit at Fort Bragg, NC. The SM and the applicant returned to their hometown of Ozark, AL, and later divorced in April 2015. Although he cannot attest to what was said at the SBP briefing referenced by the applicant, he offered that transition from the military is extremely confusing and stressful. It is impossible to remember all the information received during the process. Since the marriage was in good standing, there was no reason the SM and the applicant would have retained information regarding the requirement to update the SM's SBP after divorce. Their lawyer and the judge who presided over their divorce may not have been familiar with the SBP and known to address it in the divorce proceedings. If the retired SM continued to make SBP payments after his divorce was finalized, it is likely that the SM was not aware of the requirement to update his SBP. A record of continued payment would indicate an intent to ensure support. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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. The applicant is the former spouse of the FSM. The SBP election the FSM made in 2013 was for “spousal” coverage. The applicant and the FSM were married at the time the FSM made the election. The applicant and the FSM were divorced in 2015 after 17 years of marriage. However, in the divorce decree, there is no mention of military retirement pay, pensions, or survivor benefits. The FSM died in October 2019. The death certificate indicates the FSM was married at the time of his death to a woman other than the applicant. The FSM’s surviving spouse therefore has a credible and cognizable claim for the FSM’s SBP annuity benefits. The surviving spouse’s claim would appear, on the surface, to be stronger than the applicant’s. Consequently, this is a case that involves competing beneficiaries. b. The applicant claims error/injustice based upon her and her husband receiving inadequate counseling at the time he (and possibly she) filled out the SBP paperwork in 2013. However, this argument is severely undermined by a) the absence in the divorce decree of any requirement for SBP coverage for the applicant; b) the absence of any other evidence that the FSM intended to have the applicant covered as the SBP beneficiary, as opposed to the surviving spouse; and c) the FSM’s marriage to another woman in 2015 (so soon after his divorce from the applicant), which can be inferred as the FSM’s intent to have his “spousal” SBP election not be interpreted in the applicant’s favor, and instead be interpreted as an election he meant to benefit (prospectively) his new spouse. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and 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. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 3. 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 may 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 SM by virtue of the SM's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 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. 6. The DFAS website provides guidance regarding the SBP, Reserve Component SBP, and Retired Serviceman's Family Protection Plan. SBP elections are made by category, not by name. Options include "Spouse Only," "Spouse and Child(ren)," "Former Spouse," "Child(ren) Only," "Natural Interest Person," "No Beneficiary," and "Decline." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007088 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1