2.  The applicant requests correction of the military records of her late ex-husband, the former service member (FSM) to show that he changed his SBP (Survivor Benefit Plan) election from spouse and children to former spouse subsequent to his divorce.  She also states in effect, that, on 14 April 1994, her divorce decree mandated maintenance in the SBP for the former spouse.

3.  The applicant's military records show that FSM retired from active duty on 1 September 1975.  He elected SBP participation for his spouse and children.  The applicant was divorced on 14 April 1994.  A court order and the final divorce decree mandated maintenance in the SBP for his former spouse.  However, the FSM took action into his own hands, contacted the Defense Finance and Accounting Service Cleveland (DFAS-CL), suspended spouse coverage and decline conversion from spouse coverage to former spouse coverage.  On 5 July 1994, the applicant received her division of retirement pay.  On 20 July 1994, the FSM was shot and died. On 2 August 1994, the applicant received a second check, but she returned the check due to the death of the FSM.

4.  In October 1994, the applicant contacted DFAS-CL, via telephone concerning SBP.  The applicant was told to contact the legal department, which she did.  Thereafter, on many other occasions that followed her initial contact with DFAS, she was told that additional documentation was needed before a determination of her eligibility could be made.  The applicant submitted requested copies via certified mail.  (The applicant provided records of her mailings made to DFAS with return receipts signed and dated).

5.  In March 1995, near the end of the one year period, the applicant was told by DFAS that all the paperwork that she had submitted was lost and that she would need to resubmit her paperwork.  The applicant again resubmitted the requested copies via certified mail.  

6.  The applicant called DFAS-CL in April and in June 1995, in regard to her case, and it was during this time frame that the applicant was informed by DFAS that she had 1 year from the date of her divorce to file for SBP coverage.  When the applicant’s file was finally located more than one year had passed and her application was denied, but she was advised to apply to this Board.

7.  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.

8.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement.  The law stipulated that the retiree had to request the Defense Finance and Accounting Service to change the SBP participation from spouse to former spouse.  This request had to made within 1 year from the date of the divorce.  The applicant decree stipulated that his spouse would be maintained in the SBP as a former spouse.

9.  In the processing of this case, a staff advisory opinion was obtained from the SBP Board which recommended the applicant’s SBP election be changed from spouse and child to former spouse, based on full retired pay, retroactive to date of divorce.  Further, that an annuity should be paid to former spouse (the applicant), retroactive to the FSM’s date of death on 20 July 1994.     

CONCLUSIONS:

1.  The evidence of record shows that the applicant was divorced on 14 April 1994.  The divorce decree stipulated maintenance in the SBP for the former spouse.  The FSM without consent suspended spouse coverage and did not convert spouse coverage to former spouse coverage.  

2.  The evidence of record also shows that on many occasions the applicant resubmitted requested documents via certified mail.  However, she was always told that additional documentation was needed before a determination of her eligibility could be made.  Finally in March 1995, DFAS lost her entire case and because of administrative error on the part of DFAS, the applicant was denied the annuity.  

3.  There appears to be no evidence of negligence on the part of the applicant.  Therefore, in view of the foregoing findings, conclusions and the advisory opinion, it would be appropriate to correct the records as recommended below.  

RECOMMENDATION:  

That all of the Department of the Army records related to this case be corrected by showing that the applicant is enrolled in SBP for former spouse based on the full retired pay, retroactive to date of divorce, with an annuity retroactive to date of FSM’s death, on 20 July 1994.  

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON