| Mr. Loren G. Harrell | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Ernest M. Willcher | Chairperson | |
| Mr. Hubert O. Fry, Jr., | Member | |
| Ms. Margaret V. Thompson | Member |
2. The applicant requests that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected “former spouse” coverage under the Survivor Benefit Plan (SBP).
3. The applicant states that the divorce decree ordered the FSM to leave her as the SBP beneficiary. He did not keep paying premiums because he was court-ordered to do so; he did it because he wanted her to have this income.
4. The FSM’s military records show that he entered the Army on 13 June 1949. He and the applicant married on 16 July 1966. He retired, in pay grade E-6, on 1 August 1969.
5. In 1974, the FSM elected SBP, “spouse only” coverage during one of the Open Enrollment periods.
6. On 10 September 1991, the FSM and the applicant divorced. The divorce decree states in part that the applicant “shall be entitled to the Plaintiff’s military survivor’s benefit.”
7. The FSM died on 6 August 1998. The applicant applied for SBP benefits and the Defense Finance and Accounting Service – Denver (DFAS-DE) denied her request because a deemed election had not been made within one year of the date of divorce.
8. 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.
9. Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).
10. Public Law 97-252, the Uniformed Services Former Spouses Protection Act, dated 8 September 1982, established SBP for former military spouses.
11. Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions.
12. 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 or was still on active duty and had not yet made an SBP election.
13. Title 10, U. S. Code, section 1450(f)(2) incorporates the provisions of the USFSPA relating to the SBP. It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election. If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made. Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.
CONCLUSIONS:
1. The FSM failed to comply with the letter of the law by making a written request to change his SBP coverage from “spouse only” to “former spouse” and the applicant failed to make a written request for a deemed election within one year of the date of divorce. However, the Board concludes that it was the FSM’s intent to provide SBP “former spouse” coverage for the applicant as he continued to pay SBP costs until his death.
2. In view of the foregoing, it would be in the interest of justice to correct the FSM’s 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 FSM concerned changed his SBP “spouse” coverage to “former spouse” coverage on 10 September 1991, the date of his divorce, thereby entitling the applicant to an SBP annuity effective 6 August 1998, the date of the FSM’s death.
2. DFAS will conduct an audit of the FSM’s records to determine if any SBP costs are owed. If so, such costs will be deducted from the applicant’s SBP annuity until such costs are paid back.
BOARD VOTE:
__EMW__ __HOF__ __MVT__ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Ernest M. Willcher
______________________
CHAIRPERSON
| CASE ID | AR1997009264 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 19990520 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (GRANT) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 137.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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