IN THE CASE OF: BOARD DATE: 31 March 2023 DOCKET NUMBER: AR20220009141 APPLICANT REQUESTS: correction of her deceased former husband's records to show he elected "former spouse" Survivor Benefit Plan (SBP) coverage within 1 year of their divorce by: * amending his DA Form 4240 (Data for Payment of Retired Army Personnel) * recognizing his unsigned DD Form 2656-1 (SBP Statement for Former Spouse Coverage) 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) * Memorandum in Support of Application for Correction of Records, undated * DA Form 4240 (page 1 only) * Superior Court Qualified Domestic Relations Order, 25 April 2016, with allied documents – * Property Settlement Agreement, 26 March 2016 * Addendum to Domestic Relations Order, 5 May 2016 * Property Settlement Agreement, 7 April 2016 * Schedule A – Property Awarded and/or Confirmed to Husband, 1 May 2016 * Schedule B – Property Awarded and/or Confirmed to Wife, 1 May 2016 * Schedule C – Debts Assigned and/or Confirmed to Husband, undated * General Affidavit, 28 January 2022 * Letter from Deceased Retired Service Member's (SM) Daughter, * DD Form 2656-1, unsigned and undated * Letter to Defense Finance and Accounting Service (DFAS), Defense Office of Hearings and Appeals (DOHA), 22 January 2020 * Letter from Defense Legal Services Agency, DOHA (Appeal Decision), 15 December 2021 ? FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The SM joined the Regular Army in 1954 and later joined the Arizona Army National Guard. He married the applicant in 1979. He retired at age 60 as a brigadier general. During the retirement process, the SM executed a DA Form 4240 and inadvertently marked the box declining Reserve Component SBP (RCSBP). Despite this, DFAS withheld RCSBP premiums from the SM's retired pay. As evidence of this mistake, part of the property settlement agreement specifically states the applicant would be the beneficiary of the SM's RCSBP. Furthermore, the applicant was expressly responsible for the monthly premium payments. Accordingly, the former SM's DD Form 2656-1 specifically references that "former spouse" SBP coverage was being made pursuant to a voluntary agreement incident to divorce. b. Neither the retired SM nor the applicant were aware that they were not enrolled in the RCSBP. In fact, statements from the SM's daughter support the assertation that the retired SM thought the applicant was still the beneficiary and that he was enrolled in the plan. Under the impression that the coverage was still in effect for the next 3 years, the applicant paid the monthly premium as agreed upon in the divorce until the retired SM's death in 2019. In fact, they paid in excess of $40,000 in premiums since the SM's retirement for the RCSBP coverage under the assumption that it was still in effect. 3. On 24 February 1979, the SM and the applicant married. 4. Department of Emergency and Military Affairs, Division of Military Affairs (Army), Office of the Adjutant General, Orders 19-4, 30 January 1980, as amended by Orders 26-5, 8 February 1980, honorably discharged the SM from the Army National Guard and transferred him to the U.S. Army Reserve Control Group (Standby) effective 7 March 1980. 5. The National Guard Bureau memorandum (Notification of Eligibility for Retired Pay at Age 60), 17 June 1981, notified the SM that, having completed the required years of service, he was eligible for retired pay upon application at age 60. The enclosure listing shows the SM was provided an SBP Summary. 6. Department of Emergency and Military Affairs, Division of Military Affairs (Army), Office of the Adjutant General, Orders 162-6, 13 September 1982, further amended Orders 19-4 to show the SM was transferred to the U.S. Army Reserve (Retired). 7. On 24 March 1992, the SM completed a DA Form 4240. The SM indicated he was married without dependent children. He declined SBP coverage. He listed the applicant as his spouse. The SM signed and dated the DA Form 4240. The applicant signed the form, indicating she was fully informed and counseled concerning the options available under the SBP for a survivor annuity and that she understood the decision which was made. The Retirement Services Counselor and witness signed the DD Form 4240. 8. U.S. Army Reserve Personnel Center Orders P-07-303156, 20 July 1992, retired the SM and placed him on the Retired List effective 15 September 1992. 9. The Property Settlement Agreement, 7 April 2016, directed the retired SM to ensure the applicant continues to be the sole beneficiary of his SBP. The applicant would be responsible for paying the monthly premium of $123.86, and shall make the payments as instructed by the Department of Defense. In the event that the applicant is not able to directly pay the premium, the retired SM shall continue to pay the premium and the applicant will reimburse the retired SM for the premium on a monthly basis. 10. On an unknown date during the period the retired SM and applicant were pending divorce, a DD Form 2656-1 was partially executed. The DD Form 2656-1 shows the applicant as the former spouse to be covered and the retired SM as the member. Neither signed the DD Form 2656-1. Item 11 (Remarks) states: "Divorce is not finalized yet but his agreement has been incorporated into a property settlement agreement. Prior spouse agrees to pay the premiums for Survivor Benefits." 11. The retired SM's records do not contain and the applicant did not provide a divorce decree. 12. On 6 October 2019, the retired SM died. He was 87 years old. 13. On 15 December 2021, the Defense Legal Services Agency, DOHA, notified the applicant that her claim to be the annuitant of the deceased retired SM as his surviving former spouse under the RCSBP was disallowed. a. Absent from the claim file was a timely RCSBP former spouse coverage election from the retired SM (either voluntary or mandatory) or a timely RCSBP former spouse deemed election from the applicant. b. Even more fundamental, under Title 10, U.S. Code, section 1448(a)(3)(A)(i), the member may opt out of the RCSBP with written concurrence of the member's spouse. The retired SM exercised that option when he checked item 12e of the DA Form 4240, 24 March 1992. By signing Part VII of that form, she provided the written concurrence required by Title 10, U.S. Code, section 1448(a)(3)(A)(i), to validate his election not to participate in the RCSBP. If a married member elected not to participate in the SBP (including the RCSBP), and that member is later divorced after retirement, that member cannot establish SBP or RCSBP former spouse coverage, even if required to do so under the terms of the couple's divorce decree. c. The erroneously collected RCSBP premium payments totaling $40,130.64 were refunded to the beneficiary highest on the order of precedence established under Title 10, U.S. Code, section 2771(a). 14. On 27 January 2022, the daughter of the deceased retired SM provided a letter in support of the applicant. She stated she was the representative of her father's will and took care of all details related to his property and assets. She further stated: a. Her father, the retired SM, lived with her and her husband for the last 18 months of his life due to his inability to be independent. Although his physical abilities diminished, his mental state was good until the very end. b. After her father's divorce from the applicant, he spoke about the applicant with love and happy memories. He expressed to her that the applicant would receive military benefits due to the fact they had been married for so long and the applicant had not re- married. It was his understanding that the military would begin issuing the applicant money on a monthly basis shortly after his death. c. In conversations with her father, the topic of non-payment to the applicant ever came to light. 15. On 28 January 2022, the applicant rendered a general affidavit under oath stating she made premium payments for the SBP from the time of her divorce from the retired SM until his passing. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the SM's military records, the Board found that relief was not warranted. The applicant's contentions, the SM's military records and regulatory guidance were carefully considered. The Board considered the review and finding of the advisory official noting that both the applicant and former service member declined coverage. The Board concurred with the advisory official. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. ? 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, the SBP, enacted 21 September 1972, 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. 2. 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 could 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 service member by virtue of the service member's residence in the State (other than pursuant to military orders), domicile in the State, or consent. 3. 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. 4. 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) AR20220009141 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1