2. The applicant requests correction of the military records of her ex-husband, (the retiree) to show that he changed his SBP (Survivor Benefit Plan) election from child only to former spouse and child.
3. The applicant's military records show that the retiree was born on 21 August 1943. He entered the Regular Army on 21 June 1966. On 1 August 1989, the retiree elected SBP participation for his spouse and child. On 22 September 1989, he retired from active duty. The highest grade he achieved was pay grade 05. On 25 September 1990, they divorced. A court order and the final divorce decree mandated maintenance in the SBP for his former spouse. In October 1990, the retiree notified the Defense Finance and Accounting Service Indianapolis (DFAS-IN) and suspended spouse coverage effective November 1990, the retiree was refunded 1 months spouse costs.
4. In October 1993 and in January 1994, the retiree sent two letters to DFAS-IN requesting reinstatement of his former spouse. On 24 February 1994, DFAS-IN denied the retirees request for reinstatement of his former spouse. The denial was based the fact that the election was not made within 1 year of the divorce.
5. On 17 January 1996, the applicant appealed to this Board for correction of the retirees military records.
6. 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.
7. 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. The divorce decree stipulated that his spouse would be maintained in the SBP as a former spouse.
8. In the processing of this case, a staff advisory opinion was obtained from the SBP Board which recommended approval of the applicants request.
CONCLUSIONS:
1. The evidence of record shows that they divorced on
25 September 1990. The divorce decree stipulated maintenance in the SBP for the former spouse. The retiree suspended spouse coverage and did not convert spouse coverage to former spouse coverage.
2. The evidence of record also shows that on two occasions the retiree attempted to enroll his former spouse into SBP, making it apparent that he wants to comply with the court order and the final divorce decree. Therefore, in the interest of all parties concerned justice would be best served by granting the applicants request.
3. In view 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 applicant is enrolled in SBP for former spouse based on the full retired pay, retroactive to date of divorce with no lapses in the requirement to pay for protection rendered.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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