Search Decisions

Decision Text

ARMY | BCMR | CY1996 | 9607898C070209
Original file (9607898C070209.txt) Auto-classification: Denied
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

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100017236

    Original file (20100017236.txt) Auto-classification: Denied

    The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show she is the beneficiary of his Survivor Benefit Plan (SBP) annuity and life insurance policy. The FSM's records at DFAS show the FSM married Dawana on 16 December 1995. Therefore, in the event of the FSM's death, any SBP benefits would have to be paid to the beneficiary in effect at the time of death, his spouse, not his former spouse, if they had been married for at least...

  • ARMY | BCMR | CY2014 | 20140019417

    Original file (20140019417.txt) Auto-classification: Denied

    The applicant, the former spouse of a deceased former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. On 25 March 1987, the FSM and applicant were divorced. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse...

  • ARMY | BCMR | CY2015 | 20150003158

    Original file (20150003158.txt) Auto-classification: Approved

    The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he elected former spouse Survivor Benefit Plan (SBP) coverage. Her former spouse's SBP election was then changed from spouse coverage to former spouse coverage. On 16 December 2014, by letter, DFAS informed the applicant that after a review of the FSM's pay records, it was determined that the wording in the divorce decree was insufficient to establish that the court...

  • ARMY | BCMR | CY2013 | 20130016844

    Original file (20130016844.txt) Auto-classification: Denied

    The applicant, the former spouse of a retired, and now deceased, former service member (FSM), requests in effect correction of her former husband's record to show he elected Survivor Benefit Plan (SBP) coverage for former spouse, and payment of the SBP annuity based on his death. The applicant states: * her former spouse elected Option C on 15 January 1988 when he received his 20-year letter and on 31 December 1992 when he retired * she and the FSM were divorced after 20 years of marriage...

  • ARMY | BCMR | CY2014 | 20140011733

    Original file (20140011733.txt) Auto-classification: Approved

    The applicant requests the records of her deceased former husband, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death. However, the FSM's pay records do not reflect receipt of the former spouse election from the FSM nor did DFAS receive a deemed election request from the applicant within one year of the divorce. When the FSM...

  • ARMY | BCMR | CY2014 | 20140004360

    Original file (20140004360.txt) Auto-classification: Denied

    She is the former spouse of the FSM who retired from the Army in 1987. He and the applicant divorced on 14 January 2008. There is no evidence the FSM or the applicant made a deemed election to change his SBP coverage from spouse to former spouse coverage within 1 year of their divorce.

  • ARMY | BCMR | CY2014 | 20140019123

    Original file (20140019123.txt) Auto-classification: Denied

    The applicant requests, in effect, correction of the records of her deceased former husband, a former service member (FSM), to show he changed his SBP coverage from "spouse" to "former spouse" within 1 year of his divorce and payment of the SBP annuity based on his death. The applicant provides: * Report and Certificate of Marriage * Divorce decree * FSM's Certificate of Death * Applicant's name change * Child's name change * Letter of Guardianship * Physician Certificate for Child...

  • ARMY | BCMR | CY2014 | 20140019539

    Original file (20140019539.txt) Auto-classification: Approved

    On 26 September 2013, by letter, DFAS responded to the applicant that a review of the FSM's retired pay account reflected the FSM did not elect former spouse SBP coverage and although the divorce decree stated she must deem the election, there is no evidence she did so. On 27 January 2014, by letter, DFAS explained that in order for the former spouse to be eligible for the SBP annuity, the member would have to request in writing to change the SBP election from spouse to former spouse or the...

  • ARMY | BCMR | CY2011 | 20110017562

    Original file (20110017562.txt) Auto-classification: Approved

    The applicant states: * she and the FSM gave the best years of their lives to the Army * the only reason she divorced the FSM is because of what Operation Desert Storm did to him; he came back a different man * their divorce decree clearly stipulated that she was to be the beneficiary under the SBP at the FSM's expense * the FSM paid SBP premiums from his retired pay each and every month * in spite of their divorce, she and the FSM spoke at least once a week * when the FSM knew he was dying...

  • ARMY | BCMR | CY2009 | 20090004478

    Original file (20090004478.txt) Auto-classification: Denied

    The applicant, the former spouse of a former service member (FSM), requests, in effect, that the FSM's records be corrected to show she submitted a "deemed election" in a timely manner establishing herself as the beneficiary for benefits under the Survivor Benefit Plan (SBP) as a former spouse. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. The law also permits the...