IN THE CASE OF: BOARD DATE: 11 October 2023 DOCKET NUMBER: AR20230000379 APPLICANT REQUESTS: in effect, payment of 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) * Marriage Certificate, * FSM’s Death Certificate * Personal Statement * Letters to and from the Defense Finance and Accounting Service (DFAS) * July 2022 Defense Office of Hearing and Appeals, 11 July 2022 * Marital Dissolution Agreement * Divorce Decree * Claim for Unpaid Compensation of Deceased Member of the Uniformed Services * Verification of SBP Annuity. 29 April 2022 * DOHA Appeal Decision, 27 September 2022 FACTS: 1. The applicant states she and her ex-spouse were divorced in 2001. The SBP was awarded to the spouse in their divorce decree. The veteran died on 20 April 2022. DFAS will not award the SBP until it shows they are divorced. The former spouse will be in financial hardship without the SBP annuity that is owed to her per the divorce decree. 2. In a statement, the applicant states she spoke with a very helpful employee of DFAS named [Name] on 4/26/22 regarding the Survivor Benefit Plan. She explained to her that her ex-spouse (the FSM) had just passed away. Neither her ex-husband nor she had any idea that any court ordered SBP for former spouse, needed to file a written request within 1 year of court date. Both she and her ex-husband thought that since she was listed as his SBP and on pay pal everything was covered. The DFAS employee [Name] walked her thru the forms she needed to fill out and submit to help resolve this. She has enclosed her divorce papers, marriage certificate, and death certificate. She is asking to receive the SBP annuity. 3. The FSM served on active duty as a warrant officer from August 1980 to February 1998, with prior enlisted service. He was married to the applicant [] on 12 December 1981. 4. The FSM retired as a chief warrant officer four on 28 February 1998. Before retiring, he completed a DD Form 2656, Data for Payment of Retired Personnel, on 25 November 1997 in which he elected SBP coverage for “spouse and children.” 5. On 18 September 2001, the FSM and applicant’s marriage was dissolved by a Final Decree of Divorce, issued by the Circuit Court of [Name of County], [Name of State]. The divorce decree ratified a Marital Dissolution Agreement which provides that, "10) Husband’s Retirement: The parties agree that Wife shall be listed and be entitled to receive survivor benefits from Husband's retirement in the event of Husband's death until Wife remarries or dies .... " and to carry this out, "17) It is understood and agreed between the parties . . . that each party shall willingly execute and deliver any and all instruments necessary or required in order to implement the terms of this Agreement." 5. According to DFAS, neither the FSM nor the applicant made a request to make an election for former spouse coverage under the SBP within one year of the divorce. 6. On 20 April 2022, the FSM died. His death certificate shows he was divorced. Another person’s name is listed as the informant. a. On 29 April 2022, after his death, the applicant completed a DD Form 2656-7, Verification for Survivor Annuity, in which she claimed an SBP annuity as the former spouse of the FSM. b. On or about 3 June 2022, DFAS responded to the applicant denying entitlement because her former spouse, the FSM, did not request the change of election to "former spouse" or a deemed election request that needed to be submitted within one year from the divorce timeframe. DFAS advised her that 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 one year of the divorce. 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 one year of the divorce. A divorce decree alone does not constitute a deemed election. DFAS has no record on file that the FSM made a request to change his SBP election from spouse to former spouse coverage. While the divorce Judgment filed on 7 July 2001 does award former spouse survivor benefit coverage to [Applicant], there is no record of a deemed election made within one year of the date of divorce. As a result, her claim for former spouse SBP was denied and she was advised of her appeal rights. c. On or about 14 June 2022, the applicant appealed the denial by letter in which she stated that both she and the FSM were not aware of the requirement to make a former spouse election. d. On 11 July 2022, in response to her appeal of the DFAS denial of her claim for entitlement to the SBP annuity, DFAS prepared an Administrative Report to send to the Defense Office of Hearing and Appeal (DOHA). The report stated: the applicant was awarded former spouse SBP coverage in the Judgment of Divorce, but the FSM did not voluntarily elect former spouse SBP coverage for the applicant, nor was a deemed election received from the applicant, within one year from the date of their divorce. Consequently, DFAS appropriately denied the former spouse SBP annuity. She was advised of her right to file a rebuttal in response to the Report. e. On 26 August 2022, after reconsidering her claim in their Administrative Report and denying it again after finding that neither the applicant nor the FSM submitted a timely request to elect SBP former spouse coverage, and that she was not entitled to SBP coverage, and after not having received a rebuttal submission, DFAS forwarded her claim together with relevant documents to DOHA. f. On 27 September 2022, DOHA issued an appeal decision disallowing her claim. The decision states, as stated earlier, in 1997 the FSM elected to establish SBP spouse coverage for her. But her divorce in 2001 ended that coverage. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board agreed the court-order should have been followed, and the SBP election was required to elect former spouse SBP coverage within a year of their divorce. The Board found based on the evidence, the record should be corrected to show election was made by the former service member and approved in a timely manner to be in accordance with public law. As such, the Board granted relief. 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 former service member changed his SBP election from spouse to former spouse on 1 October 2001 (immediately after his divorce) and the request was received and processed by the appropriate office in a timely manner. 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 § 1448(b)(3)(A) authorizes persons already participating in SBP voluntarily to elect coverage for a former spouse, stating as follows: "(3) Former Spouse Coverage by Persons Already Participating in Plan: "(A) Election of Coverage – "(i) Authority for Election: - A person - "(I) who is a participant in the Plan and is providing coverage for a spouse or a spouse and child ( even though there is no beneficiary currently eligible for such coverage), and "(II) who has a former spouse who was not that person's former spouse when that person became eligible to participate in the Plan, may (subject to subparagraph (B)) elect to provide an annuity to that former spouse. "(ii) Termination of Previous Coverage - Any such election terminates any previous coverage under the Plan. "(iii) Manner and Time of Election. - Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment." 2. Title 10, U.S. Code, § 1450(f)(3)(A) (2006), if a person described in Title 10, U.S. Code § 1448(b)(3) is required by a court order to elect to provide an annuity to a former spouse, and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives a written request from the former spouse concerned requesting that such an election be deemed to have been made and receives a copy of the court order, regular ort its face , which requires such election. 3. Title 10, U.S. Code, § 1450(f)(3)(A), Required Former Spouse Election to be Deemed to Have Been Made. “(A) Deemed Election Upon Request by Former Spouse. - If a person described in paragraph (2) or (3) of section 1448(b) of this title is required (as described in subparagraph (B)) to elect under section 1448(b) of this title to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following: a. "(i) Request from Former Spouse. - A written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made. b. "(ii) Copy of Court Order or Other Official Statement.-Either- "(I) a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or "(II) a statement from the clerk of the court ( or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law." 4. Title 10, U.S. Code § 1450(f)(3)(C) (2006) , an election may not be deemed to have been made in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000379 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1