IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006502 APPLICANT REQUESTS: correction of her former husband's records to show he changed his Survivor Benefit Plan (SBP) election to "Former Spouse" coverage within 1 year of their divorce. 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) * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 31 August 1968 and 23 June 1971 * Marriage Certificate Extract, 23 August 1972 * two DD Forms 214 for the periods ending 18 April 1974 and 24 March 1977 * DD Form 4240 (Data Payment of Retired Personnel), 26 February 1986 * SBP Spouse Statement, 26 February 1986 * DD Form 214 for the period ending 31 May 1986 * Mediation Agreement, 30 November 2006 * Settlement Agreement , 4 January 2007 * Final Judgement and Decree, 20 March 2007 * Certificate of Death, 25 August 2022 * DD Form 2656-10 (SBP Former Spouse Request Deemed Election), 8 March 2003 * Daughter's Letter, undated FACTS: 1. The deceased retired service member's (SM's) complete military records are not available for review. The Board requested his records from the National Personnel Records Center in St. Louis, MO, but no records were located. This case is being considered based on the SM's DD Form 214 and documents provided by the applicant. 2. The applicant, the former spouse of the deceased retired SM, states she and her ex-husband were unaware of the requirement to file a former spouse SBP election within 1 year of their divorce. Her ex-husband agreed to name her as the beneficiary of his SBP in their divorce decree. He recently passed away and she is unsure of what to do now. She had been caring for him in since 2017. He and his current wife were estranged and she still lives in. During the last 5 years, he always assured her that she was the only person who could claim his SBP annuity because they completed the forms together during his retirement processing in 1996. 3. The SM enlisted in the Regular Army on 25 August 1965. 4. The SM and the applicant married on 23 August 1972 in the Republic of Vietnam. 5. The SM's DA Form 4240 (Data for Payment of Retired Army Personnel) shows in: a. Part III (SBP Election): * block 10 (Are you married?) – he placed an "X" in the "Yes" box * block 11 (Do you have dependent children?) – he placed an "X" in the "Yes" box * block 12 (Check one of the following to indicate the type of coverage you desire) – he placed an "X" in box b (Spouse and dependent children) * block 13 (If you checked 12a, b, or c, do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay?) – he placed an "X" in the "Reduced Amount" box and entered $450.00 * block 14a (Name of Spouse) – * block 14b (I have the following dependent children) – b. Part VI (Certification), the SM signed the form on 26 February 1986 and his signature was witnessed on the same day; and c. Part VII (SBP Plan Certificates), the applicant acknowledged she was fully informed and counseled concerning the options available under the SBP for a survivor annuity and understood the decision which has been made and is reflected on the certificate. She signed the form on 26 February 1986 and her signature was witnessed on the same day. 6. The SBP Spouse Statement, 26 February 1986, shows the applicant consented to the SM's SBP election for survivor coverage for spouse, or spouse and children, with a base amount of less than the SM's full retired pay. 7. On 31 May 1986, the SM retired in the rank/grade of master sergeant/E-8. His final DD Form 214 shows he completed 20 years, 9 months, and 10 days of total active service. 8. The Mediation Agreement, 30 November 2006, shows the SM and the applicant agreed the applicant would receive 50 percent of the SM's military retirement after expenses for SBP. 8. The Settlement Agreement, 4 January 2007, states, in part: In addition, Wife [Applicant] shall have, under the Survivor Benefit Plan for survivors of Uniformed Services members, all rights and entitlements to all survivor annuity payments as the former spouse of Husband [SM], and Husband [SM] shall sign, now and in the future, promptly all necessary elections or other forms to assure her entitlement and payment to her of annuity payments under the Survivor Benefit Plan and his election is incorporated into this Agreement. Until Wife [Applicant] actually begins to receive her direct payments from the military of her one-half (1/2) share of the disposable retired pay, Husband [SM] shall promptly pay to Wife [Applicant] one-half (1/2) of his disposable retired pay within five (5) days of his receipt of same. 9. The Final Judgment and Decree, 5 October 2017, shows the applicant and the SM were granted a divorce on 20 March 2007. 10. The SM's death certificate shows he died on 25 August 2022. His marital status is shown as "Married" and his surviving spouse is shown as. 11. The applicant's DD Form 2656-10, 8 March 2023, shows in: a. Section III (Authority to Request Deemed SBP Election), she answered "Yes" to the following questions: * Is election being made pursuant to written agreement previously entered into voluntarily as part of or incident to a proceeding of divorce, dissolution or annulment? * Was such voluntary written agreement incorporated in, ratified, or approved by a court order? b. Section IV, block 17 (Remarks), the statement: My ex-husband did not file this paperwork in a timely manner as stated to be done in our divorce decree. We have been roommates from 2017-2022 and I took care of him in the last years of his life. We have a daughter together that we both moved to Florida in 2017 to be closer to her. He does have a current estranged wife who lives in Savannah, GA still. [SM] assured me and our daughter that the SBP was supposed to be in place for me and was never allowed to be changed from the day he purchased it when doing his retirement. I was there that day and signed the paperwork. The man told us both this could never, ever change even with divorce, but if I remarried, then it would be an issue. I never remarried. While divorced, I was receiving one half of [SM's] retirement pay and when he passed, he told me the SBP would be in place to cover the cost of what I no longer receive. I am very scared and not sure what to do now. 12. The applicant's daughter provided a letter on behalf of the applicant to offer additional information in support of her mother's request wherein she stated, in part: …My mom's heart is broken also because she lost her best friend, the man she had known for 50 years. My dad always ensured we had a good life and were taken care of. Even after they separated, my dad made sure my mom had a safe place to live, health insurance benefits, and was living comfortably. They remained close friends for many years until my father remarried in 2007. There was no animosity in the situation, just my parents realized a new spouse didn't want them to be in contact and they were respectful of that. Even though my parents separated about 25 years into their relationship, they maintained a friendship after their separation when I was finishing high school, during my college years, and into my adult life. While I was in college, my father met his now-estranged wife (widow) and in order to remarry in 2007, he had to divorce my mom officially. At the time of their divorce, my parents met with lawyers for a settlement agreement. My mom asked her attorney to make sure the survivor benefit plan was put into their agreement despite being told it would not matter because when it was purchased at the time of my father's retirement, she signed the paperwork and the SBP was not allowed to be transferred to anyone after it was started. This and the other agreements in the divorce was [sic] not a contentious point between them. They agreed she would receive part of his military retirement pay in lieu of alimony, buying out her half of the house, etc. My father knew this made best financial sense and the survivor benefit would kick in if something happened to him and he didn't have to worry about my mom being helpless in the world if he was gone. He always recognized that he was the central person in her adult life and he brought her to the United States, away from everything she knew to start a new life… …I have been trying desperately to get answers from the VA [Department of Veterans Affairs] or DFAS [Defense Finance and Accounting Service], MacDill AFB [Air Force Base], anyone who can help. At this point I have been told so many things and I am unsure if I am sending this to the correct people or if I even have the right forms, let alone what order to send them in to the military. One person told me there was a one year deadline from my dad's passing to file this paperwork and now I am worried that I have let nearly 7 months pass on this. 13 On 10 January 2024, a DFAS pay technician stated the SM's current SBP election is for "Spouse" coverage. The SM's surviving spouse is the named beneficiary. BOARD DISCUSSION 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. One potential outcome was to grant relief based on the divorce decree stating the applicant was entitled to the former service member’s survivor benefits. However, upon review of the applicant’s petition and available military records, the Board determined the former service member retired in 1986 and elected to participate in SBP at a reduced rate with his spouse as the beneficiary. Evidence shows the applicant, as his spouse concurred with the reduced amount, in 2007 the applicant and the retired former servicemember divorced. The Board noted the former service member agreed to sign all necessary elections and forms to assure the applicant’s entitlements to the SBP. 2. The Board determined based on the evidence, the former servicemember did not take the appropriate steps to change the category of his beneficiary from spouse to former spouse. The Board noted the applicant could have deemed an election change within one year of the divorce, but the evidence shows she was unaware of this requirement. The former servicemember died in 2022 and was married to his second spouse who is receiving the SBP annuity since the spouse was still designated as the beneficiary. The Board agreed, based on public law they can not deprive the surviving spouse of the SBP without due process. Unless the applicant can provide a signed and notarized affidavit from the surviving spouse voluntarily relinquishing her rights to the annuity in favor the applicant relief is denied ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. 1. 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. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, 8 September 1982, established SBP coverage for former spouses of retiring members. 3. Public Law 98-94, 24 September 1983, established former-spouse coverage for retired members. 4. Public Law 99-661, 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 serving on active duty and had not yet made an SBP election. 5. 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. 6. 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) AR20230006502 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1