Amy was standing at the kitchen island when she got the news. She remembers it like it was yesterday. Her daughter came in and handed her the mail like any other Tuesday, but this Tuesday was different. A letter containing very troubling news was included among the local coupons, extended warranty offers, and other mail that Amy really would rather not have to recycle on a daily basis. The letter declared that her ex, Tom, had passed away. Even though the divorce was more than 5 years ago, Amy relied on her share of Tom’s military pension to help her with rent and car payments. Tom was a retired Air Force officer. With Tom gone, what would Amy do? Had Amy’s lawyer addressed the death benefit issue in the divorce? The article is designed to provide guidance for what to do when Amy places a call to your office seeking advice and assistance.
The first step to protect a spouse’s claim to the survivor benefit plan (SBP) of the servicemember is to ensure the proper language is included in the decree. Failure to do so can be fatal. In the Williams case, an agreement stating that the wife was to have “all survivors’ benefits otherwise accorded to her by law . . .” did not provide her an entitlement to SBP coverage, according to the appellate court. Williams v. Williams, 37 So. 3d 1171, 2010 Miss. LEXIS 315 (2010). As SBP is not mandated by law for a non-spouse, and is a choice, it was held that the chancellor erred in requiring SBP coverage for the wife since the agreement of the parties did not entitle her to coverage. There are other cases nationwide consistent with the Williams case, requiring specific reference to survivor benefits. For example, in Morris v. Morris, 804 N.W.2d 314 (Iowa Ct. App. 2011), decision vacated 810 N.W. 2d 880 (Iowa 2012), the appellate court found that “half of husband’s military retirement” did not provide for SBP coverage. Therefore, when representing the servicemember on the SBP issue, the best practice is adopting the catch phrase silence is golden. See Mark E. Sullivan, Defending Against SBP in Divorce.
When representing the spouse, the rule is choose it or lose it.
If Amy’s lawyer included the correct language to pass the first hurdle and obtain SBP coverage, the next question is whether Amy and her lawyer meet the applicable deadlines. Deadlines must be met to obtain SBP coverage as a former spouse. See Mark E. Sullivan, Guidance for Lawyers; The Survivor Benefit Plan. Servicemembers seeking SBP must elect former-spouse coverage within one year of the divorce decree. 10 U.S.C. § 1448(b)(3)(A)(iii). The spouse can also use what is known as a deemed election, which must be submitted within one year of the order providing for SBP coverage. 10 U.S.C. § 1450(f)(3)(C). Note that retirement and death can operate as additional deadlines. See Mark E. Sullivan, The Military Divorce Handbook (ABA 3d ed. 2019).
What happens when the deadline has passed? The board application comes into play where there is a valid SBP award in an agreement or court order, but the deadline was missed. The most common family law issues we see regarding military survivor benefits are missing the survivor benefit entirely and missing the SBP deadline. It is my hope in writing this that drawing attention to this important issue will assist attorneys in avoiding these two problems.
Though attorneys can use board applications to try to save a missed SBP deadline, a missed deadline is a serious issue and can lead to a malpractice claim. Once the deadline is missed, the first call should be to have a candid discussion with the client about the deadline issue. The second call should be to alert the malpractice carrier of the possibility of a claim.
When the spouse learns of the lack of timely filing after the one-year deadlines have passed, then an application should be made to the appropriate board for the Correction of Military Records. These boards have been established for each of the armed services to grant a remedy in the case of an error or an injustice. 10 U.S.C. § 1552(a)(1). With factual support, relief may be obtained through a board application so long as the servicemember or retiree has not remarried.
A request for correction of a military record starts with completion of an application. Applications for correction of a military record are made on DD Form 149; the online version is in fillable PDF format. Dept. of Defense Form DD 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552. The following branches of service have established boards of correction: the Army, the Navy/Marine Corps, the Air Force, and the Coast Guard. The application must be served upon the board within three years of discovery of the alleged error or injustice. However, the board may excuse failure to file within the deadline if an extension would be in the interest of justice. 10 U.S.C. § 1552(b)
A former spouse may apply in cases of SBP issues. As a general rule, applications may be submitted by the service member, a legal representative, next of kin, or a former spouse. The Board for Correction of Naval Records (BCNR), which handles cases from the U.S. Navy and the Marine Corps, is an exception. The website for the BCNR states:
Who is eligible to apply to BCNR? Current and former members of the United States Navy and Marine Corps (including Reserve personnel) may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, widow or widower, next of kin (parent, sibling, or child), or legal representative can apply for the service member. An applicant must provide legal proof of death or incompetence of the service member and proof of legal relationship.
BCNR FAQ and Key Information.
Key Information for Applicants
Counsel for the applicant should be familiar with the cases in the Court of Federal Claims dealing with deadlines, deemed elections, divorce decrees, and the Court’s authority to order remedies. See, e.g., Holt v. United States, 64 Fed. Cl. 215 (2005), Pence v. United States, 52 Fed. Cl. 643 (2002). There is a six-year statute of limitations for claims against the government in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 2501. Above all, it is essential to join forces with an attorney who is familiar with the process of applying for the correction of military records. Many cases are lost because a client thinks it is fast and simple, something that doesn’t require the help of a good lawyer. This can be a costly, time-consuming mistake.
More Spouses? More Problems
If there is a new spouse, then he or she must provide written consent to the application, unless the new spouse is joined in the court case as a party and then is excluded from SBP benefits by court order. In Amy’s case at the start of this article, if Tom (Amy’s ex) remarried since the divorce, Tom’s new wife would be a potential claimant for SBP. The board will not determine the priority amongst those claimants. The board will refuse to take sides. The North Carolina Court of Appeals case Ellison v. Ellison case provides support, as the court of appeals noted that the claimant spouse was informed by the board that they do not “act on applications for correcting SBP beneficiary designations without either: the consent of all interested parties who may have an interest in the benefit, or a court order finding that the individual concerned [Defendant] has no right to the SBP payments . . . where the individual [Defendant] has been made a party to the action in which the said order is entered.” Ellison v. Ellison, 242 N.C. App. 386, 388, 776 S.E.2d 522, 524 (2015). Therefore, unless Tom’s new wife consents, or the court rules that she has no legitimate claim to survivor benefits under the SBP, Amy cannot obtain relief from the board regarding her former-spouse SBP coverage.
There are no exact words required for a release or consent for claimed SBP rights. A notarized waiver could state, “I, Elizabeth Smith, married Tom Smith following the divorce between Tom Smith and Amy Smith, hereby release and forever give up any and all claims which I have to the Survivor Benefit Plan (SBP) of my late husband, Tom Smith, SSN 999-99-9999.” Most lawyers might think that it is hard to imagine why a new spouse would ever consent and why wouldn’t this be a waste of time. The author is consistently surprised at the number of signed waivers and consents we receive. Furthermore, it is always worth trying to get that spousal consent, given the relatively low amount of time, effort, and money it takes to prepare a simple waiver or consent form.
A court order can also release an SBP claimant. If a new spouse refuses to execute a release or consent form, Amy (the former spouse) may apply for the court to order termination of the new spouses’ rights. The new spouse must be a party to the action which results in a court order. Amy would seek a ruling from the court that Elizabeth has no right, title, or interest in the SBP plan of Tom.
The administrative relief discussed above can be challenging and this would be uncharted waters for most family law practitioners. The included checklist should help with the initial approach to work through the missed SBP and board application issue.
After this initial review, and addressing the new spouse issue, the case can proceed to the application phase.
If the board takes action corrects the servicemember’s records to add former-spouse SBP coverage for Amy, there may be an issue of retroactive payments due to the government for past coverage. The best practice is to address the possibility of back payments with everyone in advance. Be aware that if the retiree has passed away, the government will recover the back payments from the SBP paid to the former spouse. If the retiree is living, the premiums will come from his/her retired pay. This could be a substantial sum as there may be many years of unpaid premiums. The cost of SBP is beyond the scope of this article. Generally speaking, it is 6.5% for active-duty members and 10% for guard or reserve members for full SBP coverage. Generally speaking, the premium is 6.5% of retired pay for active-duty members, and 10% for Guard or Reserve members for full SBP coverage.
Convincing the Board
The board determines whether to grant or deny an application based upon whether the board “considers it necessary to correct an error or remove an injustice.” 10 U.S.C.S. § 1552 (a)(1). To obtain relief, it is essential to include a supporting affidavit with the application, DD Form 149. A supporting affidavit should include several categories of information. See Sullivan, App. 8-FFF, 8-GGG. First, it must address the reasons the board may consider the error one which should be corrected. In the family law context, this is most likely going to fall on the “injustice” language. A practitioner must pull at the heart strings of the board in an effort to show why Amy deserves assistances with SBP. The best practice tip here is to really “dive deep” into the facts with the client to create the best possible affidavit. Perhaps Amy (i) went through four of Tom’s deployments and six moves to different duty assignments, (ii) stayed at home to raise the parties’ children, one of whom has special needs, (iii) sacrificed her career, and ability to earn retirement or pension, in service of the family, and (iv) if Amy had not “kept the home fires burning,” Tom would not have risen to the rank of Lieutenant Colonel. Any or all of those types of things should be included in the affidavit to try to convince the board why relief should be granted for the former spouse. When I first started practicing, a seasoned trial lawyer approached me and said that any good trial lawyer must know that the court is looking for a problem to solve, and that the lawyer should clearly identify the problem and the solution for the court. Salesman Elmer Wheeler has been credited with saying “sell the sizzle, not the steak.” This same idea can apply to board applications. Identifying the solution, e.g., correcting the deadline for missed SBP, is the steak, whereas the sizzle is the factual rationale why Amy is entitled to relief, the many hardships she endured, the compromises the marriage made, the reasons SBP would assist her, and so forth.
The affidavit should also include a recitation of the process of the case. If there is a new spouse issue, this would include a consent or waiver form or the applicable court order(s). The best affidavits also review the decisions of the appropriate board. The author recently assisted a local co-counsel before the Board of Correction of Naval Records (BCNR) for a missed SBP case out of Washington State. We cited to 30 prior BCNR decisions in support of our position. The result? The board accepted our arguments and recommended a change in the records. The former-spouse won SBP coverage.
As noted above, the Navy and the Marine Corps have special rules in the board application context. The Navy is the most difficult board and imposes stricter limits on who may apply than the other boards. The Navy will not honor a court order extinguishing the rights of a second spouse and will only accept a waiver or consent form. Also, the Navy board requires a statement that the second spouse will pay back any benefits received (if applicable). The Navy’s regulation concerning the board is SECNAVINST 5420.193, “Board for Correction of Naval Records” (Nov. 19, 1987). See also 32 C.F.R. pt. 723 for procedures governing the BCNR, which deals with Navy and Marine Corps records. These rules apply to the Marine Corps members and retirees because the Marine Corps independently operates under the Department of the Navy.
A board application is not the only available remedy. State law may provide a solution in reopening the property division, reversal and/or relief from the judgment, or other compensatory relief. For example, a Florida appellate decision, Heldmyer v. Heldmyer, involved a servicemember who died during the process of litigation, rendering it impossible to designate the former spouse as his SBP beneficiary. The Florida Fifth District Court of Appeal directed the trial court to compensate the former spouse for the loss of her portion of the pension, including an enforceable judgment against the ex-husband’s estate if the martial estate could not make her whole. Heldmyer v. Heldmyer, 555 So. 2d 1324, 1326 (Fla. Dist. Ct. App. 1990).
In addition to state law remedies, administrative options may exist via a legal appeal to Department of Defense Office of Hearings and Appeals (DOHA). An additional appeal would lie with the Claims Appeals Board, and the matter may be taken to federal court if a favorable decision is not reached. As these remedies require a legal issue, and can be very time consuming and costly, they are not likely to arise in many cases.
A board application can be an effective tool to save a missed SBP deadline. As a practice tip, avoiding the problem by meeting the deadline is the best medicine. It makes sense to implement a reminder or calendaring system to track the SBP deadline in every military family law case. In those cases where a deadline was missed or the client hired you after the deadline, the use of a board application can provide an administrative remedy to retrieve the lost SBP for a former spouse. Consider retaining a co-counsel or a consultant to assist with this complex area of the law to minimize the risk of mistakes and lost SBP.