IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220008912 APPLICANT REQUESTS: * correction of her former husband's records to show he changed his Survivor Benefit Plan (SBP) election from "spouse" to "former spouse" coverage or that she deemed an election within 1 year of their divorce * a personal appearance hearing before the Board via video or telephone 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) * State Marriage Certificate, 3 June 1967 * County Circuit Court Decree of Dissolution, filed 26 June 2002 * State Certificate of Death, filed 11 December 2019 FACTS: 1. The applicant, the former spouse of the deceased retired service member (SM), states, in effect, her former husband's records should be corrected to show he changed his SBP election from "spouse" to "former spouse" within 1 year of their divorce. They divorced after his retirement. 2. The SM and the applicant, married on 3 June 1967. 3. The State of Indiana Military Department memorandum (Notification of Eligibility for Retired Pay at Age 60), 18 July 1991, notified the SM that he completed the required qualifying years of service for retired pay upon application at age 60 in accordance with statutory provisions. 4. The SM's DD Form 1883 (SBP Election Certificate), 25 September 1991, shows in: a. Section II (Marital, Dependency, and Election Status), block 6 (Are You Married?) he placed an "X" in the "Yes" box, and in block 7 (Do You Have Dependent Children?), he placed an "X" in the "Yes" box;? b. Section II, block 8 (Check One of the Following to Indicate the Type of Coverage You Desire), he placed an "X" by the option "Spouse Only"; c. Section II, block 9a (If You Checked 8a, b, or c, Do You Elect to Provide an Annuity Based on the Full Amount of Retired Pay?), he placed an "X" in the "FULL" box; d. Section II, block 9c, he placed an "X" by "Option C (Immediate coverage)" (Note: The instructions for block 9 on the reverse of this form states: "Item 9c. This item applies only to Reserve and National Guard members who have been notified that they have completed the required years of recognized Federal service to be eligible for retired pay upon application at age 60….Option C – I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60."); e. Section V (Additional Information), block 18 (Is This the Only Election of Coverage You Have Submitted under the New SBP?), he placed an "X" in the "Yes" block; and f. Section VI (Signatures), he signed the form on 25 September 1991 and his signature was witnessed the same date. (Note: On the reverse side of this form, he and his spouse signed the form on 25 September 1991). 5. Military Department of Indiana Orders 225-024, 19 November 1992, released the SM from active duty and placed him on the Retired List in the rank/grade of sergeant first class/E-7 and transferred him to the U.S. Army Reserve Control Group (Retired) effective 28 February 1993. 6. The SM's DA Form 4240 (Data for Payment of Retired Army Personnel), 17 December 1992, shows in: a. Part I (Pay Identification), block 8 (Date of Retirement), 1 March 1993; b. Part V (SBP Election), block 14 (Are You Married?), he placed an "X" in the "Yes" box; c. Part V, block 15 (Check One of the Following to Indicate the Type of Coverage You Desire), he placed an "X" in the "Spouse Only" box; d. Part V, block 16 (If You Checked 15a, b, c, d, or e, Do You Elect to Provide an Annuity Based on Full Amount of Retired Pay or on a Reduced Portion of Retired Pay?), he placed an "X" in the "FULL" box; e. Part V, block 17a (Name of Spouse/Former Spouse), he listed and in block 17d (I Have the Following Dependent Children), he listed two sons; and f. Part VI (Certification), the SM and a Retirement Services Officer signed the form on 17 December 1992 at Fort Benjamin Harrison, IN. 7. The SM's NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the Army National Guard in the grade of E-7 and transferred to the U.S. Army Reserve Control Group (Retired Reserve) effective 28 February 1993. He completed 16 years, 1 month, and 25 days of net service during this period and 24 years, 6 months, and 17 days of total service for retired pay. 8. The County Circuit Court Decree of Dissolution ordered the dissolution of the marriage between the applicant and the retired SM effective 26 June 2002. (Note: The Agreement of Settlement cited as exhibit A was not provided by the applicant.) 9. The SM's records contain the County Circuit Court Agreement of Settlement, filed, approved, and ordered by the Court on 26 June 2002 showing the SM and the applicant agreed to the distribution of their property. The settlement agreement does not contain specific language addressing SBP benefits; however, it contains the following paragraph entitled "Mutual Releases": The parties have disclosed to each other all property, whether real or personal, which is owned either jointly or individually by the parties. That the parties agree that all their property has been referred to herein and divided by the parties. The parties further agree that any property not mentioned herein shall still be considered joint property and shall be subject to any future division between the parties, namely, any other stocks, pensions, retirement benefits, 401(k) plans, savings accounts, certificates of deposit, or other monies not herein disclosed by one party or the other, said property being divisible at such time that it is discovered by one or the other party and the Court shall enforce the division of any such property if and when such property is brought to the Court's attention. The parties agree that the Court shall have the power of contempt proceedings to enforce any of the provisions of this Decree and Agreement, to include but not limited to, the hold harmless provisions of this Decree and Agreement. In consideration of all premises, Wife [Applicant] and Husband [SM] hereby release all claims and right which either ever had, now has, or may hereafter have against the other by reason of the relationship of Husband [SM] and Wife [Applicant], except claims and rights of each party created pursuant to this Agreement. It is the intent of this Agreement that each party accepts the provisions hereof in full release and settlement of any and all claims and rights against the other.? 10. On 10 October 2003 the SM requested advancement on the Retired List to the highest grade he satisfactorily held while serving on active duty under Title 10, U.S. Code, section 3964 (30-Year Grade Determination). He noted that while he retired on 28 February 1993 in the grade of E-7, he previously held the rank/grade of first sergeant/E-8 while serving on active duty (see attachment). a. On 2 February 2004 the Army Grade Determination Review Board convened and determined the highest grade in which the SM served satisfactorily for the purpose of computation of retired pay was E-8. The date he becomes, or will become, eligible for advancement on the Retired List would be determined by the U.S. Total Army Human Resources Command and they would notify the Defense Finance and Accounting Service (DFAS) of this decision. b. The U.S. Army Reserve Personnel Command letter, 11 March 2004, advanced the SM to the grade of E-8 on the Army of the United States Retired List effective 16 August 2001. 11. The SM's death certificate, 11 December 2019, shows he died on 7 December 2019 at age 71. His martial is status is shown as "Divorced" and his son is listed as the informant. 12. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 10 March 2023, notes the SM retired with "spouse only" SBP coverage since his retirement. The retired SM's current SBP is in a "non-pay" status due to his death. The pay technician noted the casualty department may have issued the arrears of pay beneficiary a refund for some of the SBP that was paid after the divorce date. The pay technician further noted the DFAS database contains the following documents: a. the SM's DA Form 4240, 17 December 1992, showing he elected "spouse only" SBP coverage; b. the SM's memorandum for DFAS (Notification of Divorce), 24 September 2004, with the attached County Circuit Court Decree of Dissolution, notifying DFAS of his divorce from on 26 June 2002 and his desire for his former spouse to remain as his SBP beneficiary; c. the DFAS letter to the applicant, 6 January 2020, concerning her eligibility for an annuity under the SBP of her deceased former spouse, the deceased retired SM. DFAS denied her request in full and informed her that she was not entitled to receive an annuity under the SBP for the following reasons: (1) 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 her 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. (2) 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. (3) The SM did not make a request to change his election to "former spouse" coverage nor was a deemed election for "former spouse" coverage made by the applicant. (4) This denial is the final decision of DFAS on this claim. She has the right to submit an appeal of this determination to the Defense Office of Hearings and Appeals; d. the applicant's letter to DFAS, 17 April 2020, requesting reconsideration of the 6 January 2020 decision (see attachment); e. the DFAS letter to the applicant, 21 May 2020, informing her that her appeal was not filed in a timely matter and thus could not be accepted; and f. two DFAS letters, 27 December 2021 and 15 April 2022, responding to her Congressional representative, explaining why she was not eligible for an SBP annuity. 13. There is no evidence showing the applicant submitted an appeal to the Defense Office of Hearings and Appeals. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, 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 applicant's military records, the Board found that relief was not warranted. The applicant's contentions, military records, and regulatory guidance were carefully considered. The evidence of record shows the former service member (FSM) and applicant married in 1967. On his retirement, the FSM designated the applicant as his spousal beneficiary in 1991 and 1992. They were divorced in June 2002. Both, the FSM and applicant failed to take the necessary steps to ensure that she remained as the SBP beneficiary after their divorce in June 2002. Their divorce in 2002, of course, negated the “spouse” election. Moreover, documents from DFAS indicate that premiums erroneously deducted from the FSM’s retirement pay were refunded back to the FSM’s family after he died and after DFAS realized the mistake. Thus, it is reasonable to conclude that any error committed has already been corrected and that the FSM’s family was made whole when DFAS refunded the post-divorce premiums. Because there is no former spouse election by the FSM or a deemed election by the applicant, within one year of the divorce, the Board determined there is neither an error nor an injustice. 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 will decide cases on the evidence of record; it is not an investigative body. 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 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, established the SBP. The SBP provided that military members 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 very specific circumstances. Elections are made by category, not by name. 3. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 8 September 1982, established SBP coverage for former spouses of retiring members. 4. Public Law 98-94, 24 September 1983, established SBP coverage for former spouses of retired SMs. 5. Public Law 99-661, enacted 14 November 1986, permitted divorce courts to order SBP coverage without the SM'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. 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 already participating in the plan 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008912 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1