APPLICANT REQUESTS:  Correction of the military records of her late ex-husband, the former service member (FSM) to show that he maintained her in the Survivor Benefit Plan (SBP) as a former spouse subsequent to their divorce.  

APPLICANT STATES:  In effect, that her ex-husband neglected to change her SBP status because he was sure that she would be getting SPB because he paid for it.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 1 March 1979, the FSM was released from active duty in pay grade E-7 with more than 28 years of creditable active service.  The FSM election for SBP coverage for “spouse and child” came into effect on the date of his retirement.  

On 19 June 1987, the FSM’s marriage ended in divorce.  The divorce decree did not stipulate that his spouse would be maintained in the SBP as a former spouse.  Therefore, she lost eligibility for spousal coverage.  By law, a former spouse cannot deem an election which is not court-ordered, any such change had to be made on a voluntary basis by the FSM.   There is no evidence in the FSM’s record which indicates that he requested former spouse coverage.

The FSM died on 30 October 1994.

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.  The election made by the soldier was irrevocable.

Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the SBP to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which they would be eligible for retired pay.  

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 be made within 1 year from the date of the divorce.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the SBP Board and the Defense Finance and Accounting Service, in Cleveland, Ohio, both organizations recommended disapproval of former spouse request to change the FSM’s SBP election from “spouse and child” to former spouse and child” retroactive to the date of divorce.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The evidence of record shows that the FSM elected SBP participation for his spouse and child.  However, on 
19 June 1987, the marriage ended in divorce.  The divorce decree did not stipulate maintenance for a former spouse and the applicant lost her eligibility for SBP as a spouse beneficiary on the date of the divorce.  

2.  By law, a former spouse cannot deem an election which is not court-ordered, any such change had to be made on a voluntary basis by the FSM.   There is no evidence in the FSM’s record which indicates that he requested former spouse coverage.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence which would satisfy the aforementioned requirement. 

4.  Therefore, in view of the foregoing, there exists no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director