APPLICANT REQUESTS: That the Survivor Benefit Plan (SBP) election of her ex-spouse, a former service member (FSM), be changed to reflect herself as the beneficiary.
APPLICANT STATES: In effect, that she, who was married to the FSM for 25 years, and not his second wife, who has now remarried anyway, is the proper beneficiary of his SBP.
EVIDENCE OF RECORD: The FSMs military records show:
He was born on 18 July 1932. He enlisted in the Army on 5 January 1951.
The FSM and the applicant married on 16 June 1957.
On 9 May 1980, the U.S. Army Reserves notified him he had met eligibility requirements for retirement at age 60.
On 16 May 1980, the FSM completed DD Form 1883, SBP Election Certificate, electing coverage of spouse only, option C (immediate coverage should he die before age 60) under the Reserve Component Survivor Benefit Plan (RCSBP).
On 11 November 1982, the FSM and the applicant were divorced.
On 15 February 1983, the FSM notified the Reserve Component Personnel and Administration Center (USARPAC) that he was divorced and requested a new DD Form 1883 so he could change his SBP election to reflect no spouse coverage.
In an undated letter, the FSM notified USARPAC that he had remarried on 18 June 1988 and requested a new DD Form 1883 so he could change his SBP election to reflect coverage of his new spouse. On 31 August 1989, he completed DD Form 1882, SBP Election Change, to make that change.
On 24 August 1992, the FSM completed DA Form 4240, Data for Payment of Retired Army Personnel, again listing his second spouse as his SBP beneficiary.
He was placed on the retired list on 18 July 1992, upon reaching age 60, in pay grade O-3.
On 10 November 1992, the FSM died.
At some point, his surviving, second spouse remarried prior to age 55 and lost her annuity entitlement.
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.
Public Law 95-397, the RCSBP, dated 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.
Public Law 97-252, dated 8 September 1982, established SBP for former military spouses.
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.
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.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Headquarters Army Retirement Services, which recommended the applicants request be disapproved. The opinion states that it found no evidence of government administrative error. The applicants contention that the FSMs initial election was permanent and irrevocable was correct, but only so long as he had an eligible spouse. The applicants eligibility in that category ended upon the date of the divorce. The FSM had opportunities to elect to cover his former spouse, but he chose not to do so. Upon his remarriage, he did choose to cover his second spouse. Even though she has now remarried and lost her annuity entitlement, should her current marriage end in divorce or death, she would resume eligibility for that annuity.
DISCUSSION:
1. 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 that would satisfy the aforementioned requirement.
2. The FSMs SBP election was properly made at the time the applicant enrolled, and he properly and in a timely manner made all changes he requested due to changes in his marital status.
3. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Loren G. Harrell
Director
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