2. The applicant requests correction of his military records to show that he changed his SBP (Survivor Benefit Plan) election from spouse and children to former spouse and children subsequent to his divorce. He alleges that shortly after his divorce he contacted the Defense Finance and Accounting Service (DFAS) and notified them to send support payments to his former spouse; that several years after the divorce he discovered that his former spouse was not maintained in the SBP; and that the DFAS failed to properly notify the applicant of his obligations.
3. The applicant's military records show that he retired from active duty on 30 June 1990 with the rank of chief warrant officer three and more than 20 years of creditable active service. He elected SBP participation for his spouse and children. The applicant was divorced on 24 June 1991. The divorce decree mandated maintenance in the SBP for the former spouse. On 10 February 1992, the applicant sent a copy of his divorce decree to the DFAS and requested that the support money be deposited into her account. In May 1993, the DFAS informed him that SBP spouse coverage had been suspended due to the loss of his spouse, and that his child SBP coverage was $1.80 until there was no eligible child. On 9 June 1993, the applicant received an SBP refund in the amount of $2,057.95. The SBP costs stopped completely on 1 July 1994.
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. 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.
5. In the processing of this case, a staff advisory opinion was obtained from the SBP Board which advised that the applicant failed to contact the DFAS concerning implementation of the court order; that different aspects of the SBP are regularly addressed in the Army Echoes which are mailed to every retiree on a regular basis; that information is also available at any Retirement Services Office, and that the DFAS is not responsible to inform retirees of their obligations. Therefore, the SBP Board recommended denial of the applicants request.
CONCLUSIONS:
1. The evidence of record shows that the applicant was divorced, and the divorce decree stipulated maintenance in the SBP of the former spouse. For unknown reason, the applicant waited more than 1 year after the divorce to notify the DFAS to direct payment of division of retired pay to his former spouse; however, failed to address the change in SBP coverage from spouse to former spouse.
2. While the applicant blames the DFAS for not notifying him of his obligations, he certainly should have realized that his former spouse was not covered by the SBP when he received a refund of spousal SBP premiums on 9 June 1993, and was informed that only SBP for the last eligible child was still in effect.
3. However notwithstanding the foregoing and the advisory opinion provided by the SBP Board, the former spouse should not be penalized for the applicants omission. In view of the fact that the SBP was intended to benefit military spouses and former spouses, 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 election category from spouse to former spouse effective 24 June 1991, (the date of the divorce) with retroactive payment of costs.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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