“[P]laintiff was required, within one year from the date of the divorce decree, to submit written notification of her demand and acceptance of SBP benefits.”
How later courts described this case
- “[P]laintiff was required, within one year from the date of the divorce decree, to submit written notification of her demand and acceptance of SBP benefits.”
- first citing Yanco v. United States, 258 F.3d 1356, 1362 (Fed. Cir. 2001); and then citing Chacon v. United States, 48 F.3d 508, 511 (Fed. Cir. 1995)
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
FOR PUBLICATION
No. 24-976C
(Filed: July 30, 2025)
)
PHYLLIS ZENO COLEMAN, )
)
Plaintiff,
)
v.
)
UNITED STATES, )
)
Defendant. )
Alan D. Ezkovich, Ezkovich & Co., LLC, New Orleans, LA, for plaintiff.
Isabelle Aubrun, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Washington, DC, for defendant. With her on the briefs
were Brett A. Shumate, Assistant Attorney General, and Patricia M. McCarthy,
Director, and Eric P. Bruskin, Assistant Director, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, Washington, DC.
OPINION AND ORDER
BONILLA, Judge.
Through this action, the former spouse of a retired service member seeks to
recover the Survivor Benefit Plan (SBP) annuity promised in their divorce settlement.
Recently addressing the governing statutory scheme, the United States Court of
Appeals for the Federal Circuit made two things clear. First, under 10 U.S.C. §§ 1448
and 1450, entitlement to receive an SBP annuity defaults to the surviving spouse.
Bannister v. United States, 139 F.4th 1300, 1303 (Fed. Cir. 2025). Second, to invoke
the former spouse exception, either the service member must have affirmatively
elected former spouse coverage, or the claimant must have timely submitted a request
for a deemed election of former spouse coverage. See id. at 1304–05. Today, this
Court is called upon to address a follow-on issue: whether the retired service member
or former spouse satisfied the affirmative election or request for deemed election
requirements of §§ 1448(b)(3) and 1450(f)(3). Unfortunately for the claimant, the
short answer is no.
BACKGROUND
Arthur J. Coleman served in the United States Marine Corps from March 29,
1976, until his retirement on January 31, 2000. Rising to the rank of Master Sergeant
(MSgt/E-8), his billets included aviation supply and drill instructor. Early in his
military career, MSgt Coleman was reportedly featured in the national television
commercial and billboard campaign “The Few. The Proud. The Marines.” While on
active duty, on January 21, 1989, MSgt Coleman married plaintiff Phyllis T. Zeno
(n/k/a Phyllis Z. Coleman).1 The Marine Corps formally recognized Ms. Coleman’s
service as a military spouse a decade later. Prior to his retirement, MSgt Coleman
designated Ms. Coleman and their niece/legal ward as his beneficiaries for any
unpaid retired pay and, relevant here, elected SBP coverage for spouse and children.2
Following his retirement from active duty, MSgt Coleman continued to serve
in the United States Department of Defense (DOD) Office of Equal Employment
Opportunity as an investigator. Thereafter, on September 14, 2004, MSgt and
Ms. Coleman’s fifteen-year marriage ended in divorce. Finalizing their divorce, the
couple executed a marital settlement agreement (MSA) dated September 2, 2004,
incorporated into the California state court judgment of dissolution entered two
weeks later. Under the heading “Husband’s Military Retired Pay (In Pay Status),”
MSgt Coleman agreed to award Ms. Coleman thirty-two percent of his monthly
gross military retired pay, including future cost-of-living increases, dating back to
October 6, 2003. AR 364 (alteration to capitalization).3 He also agreed to continue
his elected SBP coverage:
Husband shall name Wife as a 50% irrevocable beneficiary of the
Survivor Benefit Plan. In the event Wife chooses to become solely
responsible for the benefit payments, then Husband shall remove his
niece[/legal ward] from said plan. This provision is a “deemed election”
which Wife may directly enforce . . . . Should [niece/legal ward] no longer
qualify as a beneficiary of the Survivor Benefit Plan, Wife shall continue
to be a 50% irrevocable beneficiary of said plan as set forth above.
AR 365 (emphasis added). Two weeks later, on September 28, 2004, Ms. Coleman
filed an Application for Former Spouse Payments from Retired Pay (DD Form 2293)
with DFAS. As memorialized in the MSA, incorporated into the judgment of
dissolution, Ms. Coleman requested thirty-two percent of MSgt Coleman’s monthly
1 MSgt Coleman’s previous marriage ended in divorce two years earlier. For clarity, all references to
“Ms. Coleman” throughout this opinion are to the plaintiff. As exhibited infra, the administrative
record includes variations of plaintiff’s maiden, married, and divorced name.
2 MSgt Coleman’s Data for Payment of Retired Personnel (DD Form 2656), also signed by Ms. Coleman
on November 15, 1999, elected SBP coverage with a reduced base amount.
3 “AR __” is a citation to the administrative record.
2
retired pay. Appended to the DD Form 2293 were complete copies of the divorce
decree and MSA along with a signed Direct Deposit Authorization (DFAS-CL
Form 1059) dated October 1, 2004.
By letter dated October 26, 2004, DFAS acknowledged receipt of Ms. Coleman’s
“application for payment of a portion of [MSgt Coleman’s] retired/retainer pay . . .
under the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408).”
AR 385. DFAS then outlined the procedural protections afforded MSgt Coleman to
contest the requested garnishment and the anticipated timing of Ms. Coleman’s first
distribution. Relevant here, the October 26, 2004 DFAS letter further explained:
If your divorce decree specifies that you are to be designated as a former
spouse beneficiary for the Survivor Benefit Plan (SBP), you must make
a “deemed election” for SBP coverage within one year of the date of your
divorce directly to the Retired Pay office; DFAS, US Military Retirement
Pay, PO Box 7130, London, KY 40742-7130. If you have any questions
regarding SBP coverage, you may call the Retired Pay office at 1-800-
321-1080.
Id. Ms. Coleman began receiving monthly disbursements of a portion of
MSgt Coleman’s retired pay in December 2004. She also received a lump sum
payment in the amount of nearly $6,500, presumably for the retired pay due between
October 2003 and November 2004.
On February 7, 2005, MSgt Coleman wrote DFAS requesting that his marital
status be changed to “unmarried or single.”4 AR 386. MSgt Coleman’s letter further
“requested that an itemized earnings statement showing deductions of retired pay to
former spouse and applicable tax deductions be provided.” Id. He then posed a series
of income tax questions related to the division of his retired pay, requesting a DFAS
consultation. The record is devoid of any further communication between MSgt
Coleman and DFAS. As noted below, DFAS failed to act on MSgt Coleman’s request
to change his marital status at any time prior to his death over a decade later.
Notwithstanding his change in marital status and his niece/legal ward later reaching
the age of majority, MSgt Coleman continued to pay SBP premiums until his death.5
4 The administrative record is not clear whether MSgt Coleman’s February 7, 2005 facsimile
transmission to DFAS included only the dissolution judgment or the incorporated MSA as well, or any
attachments at all. The letter simply references: “Enclosure (1) is a copy of the San Diego Superior
Court Dissolution Judgment effective September 14, 2004.” AR 386. That said, the one-page cover
letter is the sole page in the administrative record bearing the unique facsimile header.
Notwithstanding the Court’s inquiries prior to and during oral argument, neither party could offer
anything beyond supposition.
5 Prior to MSgt Coleman’s death, his designated niece/legal ward reached the age of majority and no
longer qualified for an SBP child annuity. Nothing in the administrative record suggests that
3
Following the couple’s divorce, Ms. Coleman intermittently called and
corresponded with DFAS over the years to update her mailing address and confirm
her continued entitlement to MSgt Coleman’s retired pay and SBP benefits. See, e.g.,
AR 387–412 (DFAS correspondence), 425–26 (mailing address update); see also
AR 496–508 (narrative), 658–59 (congressional correspondence). As documented in
a November 27, 2016 letter, for example, Ms. Coleman “provid[ed] another copy of
[her] 2004 divorce decree as requested in reference to the ‘former spouse’ SBP
coverage for a former spouse . . . .” AR 387 (emphasis added). Ms. Coleman’s letter
reflected her continuing frustrations with DFAS:
Once documentation was originally submitted in 2004[] I requested
confirmation of SBP and was informed that I would not receive any
confirmation or any cost/premium in reference to SBP for my records as
this was my former spouse[’s] account. So, to my knowledge[] the process
was in place and submitted documentation was all that was needed to
confirm and process SBP coverage.
I had no reason to doubt what I was told as I had provided a copy of my
divorce decree within the requested 1 year of the date of the
divorce and in compliance with court order. I also submitted
change of address to both [DFAS] addresses in reference to change of
address in 2006 and received no information of the SBP not being
honored.
It was not until recently that I was informed that there was a problem
and I needed to send another copy of the final divorce decree. I look
forward to the correction of this error and a speedy and favorable
resolution to this process.
AR 387–88 (bold in original). As discussed supra, the apparent disconnect between
Ms. Coleman and DFAS lies in the agency’s failure to change MSgt Coleman’s marital
status in the DOD database. When Ms. Coleman inquired about the SBP annuity,
DFAS officials reportedly confirmed her beneficiary status under the mistaken
(and unspoken) impression that she was still MSgt Coleman’s spouse.
MSgt Coleman married Robin Coleman on April 25, 2012. They remained
married until his death on June 25, 2018. Two weeks after MSgt Coleman’s death,
DFAS terminated Ms. Coleman’s monthly retired pay payments. Ms. Coleman filed
a Verification for Survivor Annuity (DD Form 2656-7) on July 10, 2018, thereafter
submitting additional supporting documents requested by DFAS. Upon receipt of
Ms. Coleman exercised her right under the MSA to assume responsibility for the SBP premiums
entitling her to be the sole beneficiary.
4
Ms. Coleman’s application, an internal DFAS database still listed “Phyllis T.
Coleman” as MSgt Coleman’s spouse.6, 7 AR 414.
By letter dated October 1, 2018, DFAS denied Ms. Coleman’s claim for an
SBP annuity. DFAS explained that Ms. Coleman’s eligibility as MSgt Coleman’s
“spouse” expired when the couple divorced, and that the necessary paperwork to
convert spousal coverage to a “former spouse” election—requested or deemed—was
not timely submitted by either MSgt Coleman or Ms. Coleman. The Defense Office
of Hearings and Appeals (DOHA) denied Ms. Coleman’s successive appeals on July 27
and December 9, 2020. The Board for Correction of Naval Record (BCNR) summarily
denied Ms. Coleman’s application for administrative relief (DD Form 149) on
November 12, 2021, explaining that she did not have the necessary legal relationship
with MSgt Coleman at the time of his death.8, 9
DISCUSSION
I. Standard of Review
In the analogous context of the Public Safety Officers’ Benefits Act of 1976,10
the Federal Circuit adopted the following three-part test to review the denial of death
benefits by the United States Department of Justice’s Bureau of Justice Assistance:
6 Because Ms. Coleman identified herself as MSgt Coleman’s former spouse, the DFAS telephone log
entry notes that the caller was not MSgt Coleman’s spouse and includes the following comment:
“Former spouse is Phyllis[.] Member was remarried to a woman named Robin.” AR 414 (alteration to
capitalization). In fact, until recently, the government was seemingly unaware of MSgt Coleman’s
marriage to Robin Coleman. See, e.g., AR 1001 (DFAS internal email dated August 5, 2022: “[W]e
[have] no information about Robin Coleman. The member[’]s SBP still has Phyllis Coleman listed as
the spouse.”); AR 1010 (March 10, 2018 screenshot of MSgt Coleman’s “SBP Information” lists
“Coleman Phyllis T” as the current annuitant); AR 1006–08 (DOD Defense Enrollment Eligibility
Reporting System (DEERS) database search dated June 29, 2021, does not list Robin Coleman
among MSgt Coleman’s relatives. Instead, DEERS lists MSgt Coleman’s two former wives, including
Ms. Coleman, and their adult niece/legal ward).
7 Ms. Coleman filed a separate Claim for Unpaid Compensation of Deceased Member of the Uniformed
Services (SF 1174) on July 23, 2018. DFAS remitted just over $400 to Ms. Coleman for “arrears” on
December 8, 2021, representing MSgt Coleman’s retired pay for June 1-25, 2018, less deductions for
the final SBP premium, former spouse payment already remitted to Ms. Coleman, and unspecified
unrecovered funds.
8 Throughout these administrative proceedings, Ms. Coleman enlisted a United States Department of
the Air Force Casualty Assistance Representative and eventually retained counsel.
9 On April 3, 2025, Robin Coleman filed an application for an SBP annuity as MSgt Coleman’s
surviving spouse. During oral argument, the government represented that her application remained
pending with DFAS.
10 See Pub. L. No. 94–430, 90 Stat. 1346 (codified as amended at 42 U.S.C. §§ 3796–3796c (2000))
(current version at 34 U.S.C. §§ 10281–88 (2022)).
5
(1) whether there has been substantial compliance with statutory
requirements and provisions of implementing regulations; (2) whether
there has been any arbitrary or capricious action on the part of the
government officials involved; and (3) whether substantial evidence
supports the decision denying the claim.
Amber-Messick v. United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007) (first citing
Yanco v. United States, 258 F.3d 1356, 1362 (Fed. Cir. 2001); and then citing Chacon
v. United States, 48 F.3d 508, 511 (Fed. Cir. 1995)), quoted in Lobo v. Dep’t of Just.,
139 F.4th 1311, 1316 (Fed. Cir. 2025). “Substantial evidence ‘means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Lobo, 139 F.4th at 1316 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
II. Former Spouse Election
The default payee of an SBP annuity is the surviving spouse. See 10 U.S.C.
§ 1450(a)(1); cf. Bannister, 139 F.4th at 1303 (citing 10 U.S.C. § 1448(d)(1)). To
perfect former spouse coverage under the statutory exception codified in § 1448(b)(3),
the current or former service member (i.e., program participant) must submit an
affirmative written election of former spouse coverage within one year of the divorce
or dissolution of the marriage. More specifically, subsection (b)(3), titled “Former
spouse coverage by persons already participating in Plan,” specifies the “[m]anner
and time of election” as: “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.” 10 U.S.C.
§ 1448(b)(3)(A)(iii).
At the time of MSgt and Ms. Coleman’s divorce, the Secretary of Defense
offered several vehicles for retired servicemembers to make an affirmative election of
former spouse coverage, including the SBP Election Certificate by Existing Retiree
(DD Form 1881) and the SBP Election Change (DD Form 1882). See DOD FMR
Vol. 7B, Ch. 43 ¶ 430301 (Sept. 1999). The governing DOD regulation further
provided a catchall: “Elections in writing, signed by the member, which contain
information necessary for establishing or declining coverage are acceptable.” Id.
MSgt Coleman never completed the cited forms or otherwise submitted an affirmative
election of former spouse SBP coverage.
Although submitted within one year of the couple’s divorce, MSgt Coleman’s
February 7, 2005 fax to DFAS makes no mention of SBP, nor does it constitute an
affirmative election of former spouse coverage. Rather, the letter requests that his
marital status be adjusted to reflect his divorce, and further seeks accounting and tax
information related to his recently-garnished retired pay. Ms. Coleman’s reliance
upon MSgt Coleman’s possible attachment of the MSA to his fax is misplaced. Even
assuming MSgt Coleman appended both the referenced dissolution judgment and
6
non-referenced MSA,11 the onus did not fall upon DFAS to comb through the
twenty-five-page contractual arrangement between MSgt and Ms. Coleman in search
of potential obligations to enforce between the parties. As stated in the MSA:
“Husband shall name Wife as a 50% irrevocable beneficiary of the Survivor Benefit
Plan.” AR 365 (emphasis added). Therefore, MSgt Coleman did not make an
affirmative election pursuant to § 1448(b)(3), nor did he substantially comply with
the regulatory requirements. As noted in the MSA, if MSgt Coleman failed to honor
this obligation, enforcement fell to Ms. Coleman: “This provision is a ‘deemed election’
which Wife may directly enforce.” Id.
III. Deemed Election
To satisfy the statutory requirements of a deemed election of former spouse
SBP coverage, as reflected in the framing of 10 U.S.C. § 1450(f)(3), the former spouse
must submit two documents to the DOD Secretary within one year of the couple’s
divorce:
(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.
(ii) Copy of court order or other official statement [evidencing the
divorce].
10 U.S.C. § 1450(f)(3)(A) & (C) (emphasis in original). Consistent with this statutory
framework, in the year following MSgt and Ms. Coleman’s divorce, the governing
DOD regulation titled “Deemed Elections Requested By the Former Spouse”
provided: “On deemed elections[] requested by the former spouse or the former
spouse’s attorney, the request for the Secretary of the Military Department concerned
to deem that an election has been made is accompanied by a court order or a
statement from the clerk of the court.” DOD FMR Vol. 7B, Ch. 43 ¶ 430302 (emphasis
added). Subparagraph C of Paragraph 430503, titled “Deemed Elections” similarly
provided in relevant part:
The former spouse or the former spouse’s attorney makes a written
request. The request is acceptable if it refers to, or cites provisions in a
court order concerning SBP former spouse coverage, or makes clear by
other references to SBP that there is an intent that the coverage be
provided to a former spouse. The written request is accompanied by a
copy of the court order and/or a statement from the clerk of the court. . . .
11 As explained in supra note 4, MSgt Coleman’s February 7, 2005 fax references only the state court
dissolution judgment, presumably submitted to document his claimed divorced status.
7
DOD FMR Vol. 7B, Ch. 43 ¶ 430303(C) (emphasis added). 12
Ms. Coleman timely submitted to DFAS a formal request for a specific
percentage of MSgt Coleman’s retired pay accompanied by a copy of the couple’s
divorce decree and incorporated MSA. However, her Application for Former Spouse
Payments from Retired Pay (DD Form 2283) dated September 28, 2004, neither
mentions SBP nor otherwise requests a deemed election. Critical here, in processing
the application, by letter dated October 26, 2004, DFAS alerted Ms. Coleman: “If your
divorce decree specifies that you are to be designated as a former spouse beneficiary
for the Survivor Benefit Plan (SBP), you must make a ‘deemed election’ for SBP
coverage within one year of the date of your divorce directly to the Retired Pay office
. . . .” AR 385. Accordingly, Ms. Coleman was placed on notice that her September 28,
2004 submission was not considered by DFAS to serve as a request for a deemed
election of former spouse SBP coverage. There is no record of Ms. Coleman
submitting a follow-up request for a deemed election of former spouse SBP coverage
within one year of her and MSgt Coleman’s September 14, 2004 divorce. Therefore,
Ms. Coleman did not actually or substantially comply with the statutory or regulatory
requirements. See, e.g., Woll v. United States, 41 Fed. Cl. 371, 375 (1998) (“[P]laintiff
was required, within one year from the date of the divorce decree, to submit written
notification of her demand and acceptance of SBP benefits.”).
Ms. Coleman’s reliance upon the MSA appended to her timely-submitted
DD Form 2283 fails for the same reason discussed with respect to MSgt Coleman’s
non-election of former spouse coverage: DFAS cannot be held generally responsible
for reviewing, identifying, and interpreting a couple’s contractual arrangement and
enforcing the division of marital assets. Stated differently, the written request must
specify the asset or action sought from DFAS, whereas the attached documentation
must evidence the basis for the claimed entitlement. To conclude otherwise would
necessarily convert DFAS’s neutral administrative payment processing function into
an investigative and advocacy role. Upon the record presented, this Court must
conclude that the denial of Ms. Coleman’s claim was not arbitrary or capricious and,
to the contrary, was supported by substantial evidence.
At bottom, MSgt Coleman failed to honor his contractual obligation to
Ms. Coleman to make an affirmative election of former spouse SBP coverage under
§ 1448(b)(3). Ms. Coleman in turn did not submit a timely request for a deemed
election of former spouse coverage under § 1450(f)(3). These two facts compel the
conclusion that Ms. Coleman is not entitled to the claimed SBP annuity. See
Bannister, 139 F.4th at 1305. DFAS’s continued designation of Ms. Coleman as
MSgt Coleman’s spouse—notwithstanding their divorce in September 2004, and
MSgt Coleman’s marriage to Robin Coleman in April 2012—while in error, does not
excuse MSgt Coleman’s and Ms. Coleman’s noncompliance with the requirements of
12 The SBP Former Spouse Request for Deemed Election (DD Form 2656-10) was not introduced until
October 1, 2008.
8
§§ 1448(b)(3) and 1450(f)(3).13 As noted by the Federal Circuit in Bannister, this
Court is “without authority to waive statutory requirements.” 139 F.4th at 1305.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the
administrative record (ECF 14) is DENIED and defendant’s cross-motion for
judgment on the administrative record (ECF 21) is GRANTED. The Clerk of Court
is directed to enter judgment accordingly. No costs.
It is so ORDERED.
___________________
Armando O. Bonilla
Judge
13 During oral argument, the government acknowledged that Ms. Coleman may be entitled to a refund
of a portion of the SBP premiums deducted from MSgt Coleman’s retired pay following their divorce.
Presumably, this issue is inextricably intertwined with Robin Coleman’s pending application for an
SBP annuity as MSgt Coleman’s surviving spouse which is not before this Court. Accordingly, the
Court leaves to DFAS to evaluate these outstanding issues in the first instance.
9