2. The applicant requests correction of his military records to show that he elected SBP (Survivor Benefit Plan) participation for his former spouse. He states, in effect, that the divorce decree stipulated maintenance in the SBP, and that he did not realize he had to take additional action to implement the agreement until 1995 when he read the information provided in the Army Echoes concerning former spouse coverage in the SBP.
3. The applicants military records show that he retired from active duty on 1 June 1968, with more than 20 years of active service in pay grade E-6. On 1 October 1973, during an Open Enrollment Period for SBP, the applicant elected SBP participation for his spouse. Subsequently, they divorced on 1 August 1988. The divorce decree mandated maintenance in the SBP for the former spouse. The applicant failed to make a written request to Defense Finance and Accounting Service in Cleveland, (DFAS-CL) of his divorce and the conversion of the SBP coverage from spouse to former spouse coverage as required by law. On 1 April 1996, DFAS-CL paid the applicant a SBP cost refund of $3,688.39 for payments made for spouse coverage following the divorce.
4. 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. Military members who were retired before 21 September 1972 had until 20 September 1974 to apply for coverage under the SBP. The applicant elected SBP participation for his spouse during the Open Enrollment Season in June 1973.
5. 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 was divorced on 1 August 1988. The divorce decree stipulated that his spouse would be maintained in the SBP as a former spouse.
6. In the processing of this case, a staff advisory opinion was obtained from the SBP Board in the Office of the Deputy Chief of Staff for Personnel. The SBP Board recommended approval of the applicants request to change his SBP election from spouse to former spouse retroactive to date of divorce, 1 August 1988. The SBP Board also recommended that $3,688.39, be collected from the applicant. In addition, if the applicant is currently married, recommend that spousal concurrence be obtained in conjunction with his request.
CONCLUSIONS:
1. At the time of the applicants retirement, the SBP had not been enacted. However, he elected participation for his spouse during the first open enrollment season in 1973.
2. The applicants divorce decree in 1988 stipulated maintenance in the SBP for his former spouse, since premiums continued to be deducted from his retired pay, he rightly presumed that his former spouse was covered by the SBP.
3. There is no evidence to show that the applicant has remarried. However, in case he has an eligible spouse, she will have to concur with the applicants request to change his coverage from spouse to former spouse for the change to be become effective.
4. In consideration 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 individual concerned changed his SBP participation from spouse to former spouse effective 1 August 1988 (the date of the divorce) with retroactive payment of cost, and with concurrence of a current spouse if applicable.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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After a period of divorce, they remarried in 2010 and remained married until his death in 2013. A review of the FSM's records indicated the FSM elected not to participate in the SBP upon his retirement in 1987. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a voluntary change in election from "former spouse and child" coverage to "spouse and child" coverage on 1 June 2010 (the first day of the...
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