2.  The applicant requests that his Survivor Benefit Plan (SBP) be reinstated with a “former spouse” election.

3.  The applicant’s military records show he was born on 7 April 1929.  He entered the Navy Reserve on 14 December 1946 and enlisted in the Army on  21 August 1948.  He retired from the Army on 31 July 1975, in pay grade W-4, after over 29 years of active creditable service.

4.  Upon his retirement, the applicant’s elected SBP participation for “spouse and child.”

5.  The applicant and his spouse divorced on 6 September 1989.  The  divorce decree stated he should keep his SBP in effect with his former spouse as the beneficiary.  The applicant was not aware he had to notify Defense Finance and Accounting Service (DFAS) of the change within one year of his divorce.  He did not notify DFAS until 1995, when he read an “Army Echoes” issue outlining the requirement.  At that time, DFAS informed him he was not within the time frame and refunded to him all costs he had paid into the SBP.

6.  Public Law 92-245, 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.  Changes in SBP options are not authorized except in specific instances or authorized by law.

7.  In the processing of this case, a staff advisory opinion was requested from the Headquarters Army Retirement Services Office. The Retirement Services Office recommended that the applicant’s request that his SBP be changed to “former spouse” be approved, provided the entire SBP cost refund that had been paid to the applicant, plus all SBP costs owed from the date of the refund to present, also be collected.

8.  On 20 April 1998, the applicant wrote to state he agrees to paying back his refund, which he has specifically saved for this purpose, plus paying any additional SBP costs involved.  He only wishes that DFAS work with him to designate how that balance shall be paid, keeping in mind he is paying monthly alimony of $1,000 per month.  He also states he has not remarried.

CONCLUSIONS:  

1.  Although the applicant failed to request “former spouse” coverage within the one year window required by law, it was obviously his wish to comply with the state court’s ordered former spouse coverage.
2.  In view of the foregoing, it would be appropriate to correct the records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant applied for “former spouse” coverage on 6 September 1989, the date of his final judgment of divorce.

2.  That DFAS contact the applicant to recoup its refund of SBP payments and to work out the least monetarily injurious method to the applicant of paying the SBP costs owed from the date of the refund to the present.

BOARD VOTE:

                       GRANT 

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                        
                                                               CHAIRPERSON